Commonwealth v. Hicks, M., Aplt.
Opinions
JUSTICE WECHT
*921In a line of Fourth Amendment jurisprudence that began with the landmark decision in Terry v. Ohio ,
First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.
Arizona v. Johnson ,
Since 1991, in circumstances where a police officer encounters a person carrying a concealed firearm, our Superior Court has applied the inverse of this bedrock rule. Specifically, in Commonwealth v. Robinson ,
We granted allowance of appeal in order to consider the viability of the Robinson rule. Because we conclude that the rule contravenes the requirements of the Terry doctrine, and thus subverts the fundamental protections of the Fourth Amendment, we overrule Robinson and its progeny. The Superior Court's decision in the instant case having descended from Robinson 's erroneous proposition of law, and there being no other lawful basis for the seizure at issue, we reverse the order of the Superior Court.
I. Background
Although we will revisit the circumstances of this case in greater detail to apply the correct rule of law, infra Part III, a brief summary of the facts found by *922the suppression court sets the stage for the lower courts' application of the Robinson rule. 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 the City of Allentown notified police officers that a patron of the establishment was in possession of a firearm. According to the suppression court's factual recitation, the "camera operator advised officers that the [observed individual] showed the firearm to another patron, put the firearm in his waistband, covered it with his shirt, and walked inside" the convenience store. Order, 9/18/2015, at 1 n.1.2
The observed individual was Michael Hicks. It later emerged that Hicks possessed a valid license to carry a concealed firearm. See 18 Pa.C.S. § 6109(a) ("A license to carry a firearm shall be for the purpose of carrying a firearm concealed on or about one's person or in a vehicle throughout this Commonwealth."). Hicks was not statutorily prohibited from possessing a firearm. Accordingly, on the morning in question, and at the observed location, there was nothing unlawful about Hicks' possession of his handgun, nor the manner in which he carried it.
While responding police officers were en route, Hicks entered and exited the convenience store, then reentered his vehicle. Before Hicks could exit the parking lot, numerous police officers in marked vehicles intercepted and stopped Hicks' vehicle. Believing that Hicks had moved his hands around inside the vehicle, Officer Ryan Alles drew his service weapon as he approached Hicks' vehicle and ordered Hicks to keep his hands up. Officer Kyle Pammer, arriving at the vehicle moments after Officer Alles, restrained Hicks' arms while Officer Alles reached into the vehicle and retrieved Hicks' handgun from a holster on his waistband. Hicks "was removed from the vehicle for safety reasons and handcuffed." Order, 9/18/2015, at 2 n.1. At that point, the officers noticed the odor of an alcoholic beverage emanating from Hicks. The officers then searched Hicks' person and, in his pocket, discovered a bag that contained a small amount of marijuana.
Upon further investigation, the officers determined that Hicks was licensed to carry a concealed firearm. Accordingly, Hicks was not charged with any crime relating to the firearm, nor with any crime relating to the other patron, to whom Hicks "showed" the firearm. Order, 9/18/2015, at 1 n.1. However, having discovered evidence of Hicks' suspected intoxication and possession of marijuana, the police officers arrested Hicks and charged him with driving under the influence of alcohol ("DUI")-high rate of alcohol (second offense), DUI-general impairment (second offense), possession of a small amount of marijuana, and disorderly conduct, graded as a third-degree misdemeanor.3
On April 15, 2015, Hicks filed an omnibus pre-trial motion seeking suppression of the evidence and a writ of habeas corpus , the latter motion requesting dismissal of the disorderly conduct charge due to the absence of any evidence establishing the elements of that crime. Following a hearing *923on Hicks' motion on July 14, 2015, the court granted Hicks' motion for a writ of habeas corpus
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JUSTICE WECHT
*921In a line of Fourth Amendment jurisprudence that began with the landmark decision in Terry v. Ohio ,
First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.
Arizona v. Johnson ,
Since 1991, in circumstances where a police officer encounters a person carrying a concealed firearm, our Superior Court has applied the inverse of this bedrock rule. Specifically, in Commonwealth v. Robinson ,
We granted allowance of appeal in order to consider the viability of the Robinson rule. Because we conclude that the rule contravenes the requirements of the Terry doctrine, and thus subverts the fundamental protections of the Fourth Amendment, we overrule Robinson and its progeny. The Superior Court's decision in the instant case having descended from Robinson 's erroneous proposition of law, and there being no other lawful basis for the seizure at issue, we reverse the order of the Superior Court.
I. Background
Although we will revisit the circumstances of this case in greater detail to apply the correct rule of law, infra Part III, a brief summary of the facts found by *922the suppression court sets the stage for the lower courts' application of the Robinson rule. 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 the City of Allentown notified police officers that a patron of the establishment was in possession of a firearm. According to the suppression court's factual recitation, the "camera operator advised officers that the [observed individual] showed the firearm to another patron, put the firearm in his waistband, covered it with his shirt, and walked inside" the convenience store. Order, 9/18/2015, at 1 n.1.2
The observed individual was Michael Hicks. It later emerged that Hicks possessed a valid license to carry a concealed firearm. See 18 Pa.C.S. § 6109(a) ("A license to carry a firearm shall be for the purpose of carrying a firearm concealed on or about one's person or in a vehicle throughout this Commonwealth."). Hicks was not statutorily prohibited from possessing a firearm. Accordingly, on the morning in question, and at the observed location, there was nothing unlawful about Hicks' possession of his handgun, nor the manner in which he carried it.
While responding police officers were en route, Hicks entered and exited the convenience store, then reentered his vehicle. Before Hicks could exit the parking lot, numerous police officers in marked vehicles intercepted and stopped Hicks' vehicle. Believing that Hicks had moved his hands around inside the vehicle, Officer Ryan Alles drew his service weapon as he approached Hicks' vehicle and ordered Hicks to keep his hands up. Officer Kyle Pammer, arriving at the vehicle moments after Officer Alles, restrained Hicks' arms while Officer Alles reached into the vehicle and retrieved Hicks' handgun from a holster on his waistband. Hicks "was removed from the vehicle for safety reasons and handcuffed." Order, 9/18/2015, at 2 n.1. At that point, the officers noticed the odor of an alcoholic beverage emanating from Hicks. The officers then searched Hicks' person and, in his pocket, discovered a bag that contained a small amount of marijuana.
Upon further investigation, the officers determined that Hicks was licensed to carry a concealed firearm. Accordingly, Hicks was not charged with any crime relating to the firearm, nor with any crime relating to the other patron, to whom Hicks "showed" the firearm. Order, 9/18/2015, at 1 n.1. However, having discovered evidence of Hicks' suspected intoxication and possession of marijuana, the police officers arrested Hicks and charged him with driving under the influence of alcohol ("DUI")-high rate of alcohol (second offense), DUI-general impairment (second offense), possession of a small amount of marijuana, and disorderly conduct, graded as a third-degree misdemeanor.3
On April 15, 2015, Hicks filed an omnibus pre-trial motion seeking suppression of the evidence and a writ of habeas corpus , the latter motion requesting dismissal of the disorderly conduct charge due to the absence of any evidence establishing the elements of that crime. Following a hearing *923on Hicks' motion on July 14, 2015, the court granted Hicks' motion for a writ of habeas corpus and dismissed the charge of disorderly conduct, finding that there "was no evidence presented that [Hicks'] actions were intended to cause substantial harm or serious inconvenience, or that he persisted in disorderly conduct after reasonable warning or request to desist." Order, 9/18/2015, at 2 n.2. However, the court denied Hicks' motion to suppress, reasoning as follows:
"In limited circumstances, an individual may be stopped, briefly detained, and frisked for investigatory purposes." [ Robinson ,600 A.2d at 959 ]. Possession of a concealed weapon in public creates a reasonable suspicion justifying an investigatory stop in order to investigate whether the person is properly licensed.Id. (holding recognized by Commonwealth v. Hall ,929 A.2d 1202 , 1207 (Pa. Super. 2007) ). Here, the police had information that [Hicks] was carrying a concealed weapon, and were justified in briefly detaining [Hicks] in order to determine whether [he] was properly licensed. As officers approached [Hicks], he moved his hands towards his waistband. This provided additional information to justify the brief detention of [Hicks] in order to investigate further. Under these circumstances, the stop and detention of [Hicks] was justified, and suppression is not warranted.
Hicks proceeded to a non-jury trial. The court found Hicks guilty of one DUI count, and acquitted him of the remaining charges. Hicks was sentenced to a term of incarceration of thirty days to six months and was assessed a monetary fine.
The Superior Court affirmed Hicks' judgment of sentence. See Commonwealth v. Hicks , 510 EDA 2016,
Having determined that Hicks' initial detention was lawful because he possessed a concealed firearm, the Superior Court concluded that the remainder of the officers' conduct was justified. The officers' actions in removing Hicks from his vehicle and handcuffing him, the Superior Court held, were "reasonably necessary to 'freeze the status quo ,' prevent Hicks from leaving the scene 'in order to ascertain his identity and gather additional information,' and to protect the officers' personal safety."
Hicks sought allowance of appeal in this Court, which we granted in order to consider whether the Superior Court's continued application of the Robinson rule comports with the requirements of the Fourth Amendment.4 Although our analysis requires us to consider Pennsylvania's statutory law regarding the possession and carrying of firearms, our polestar is the Fourth Amendment doctrine upon which the Robinson rule ostensibly is premised-the law of Terry v. Ohio and its progeny.
II. Analysis
A. Governing Law
Hicks' claim sounds in the protection from unlawful searches and seizures guaranteed by the Fourth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, and by Article I, Section 8, of the Pennsylvania Constitution.5 The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. Pennsylvania's constitutional provision, similar in its phrasing but distinct in the nature and scope of its protections, provides:
*925The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
PA. CONST. art. I, § 8. Although it is beyond cavil that Article I, Section 8, of the Pennsylvania Constitution provides broader protection from unreasonable searches and seizures than its federal counterpart, see generally Commonwealth v. Edmunds ,
Our standard of review of an order denying suppression is well-settled:
When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.
Jackson ,
Because the conduct to which the Robinson rule applies is regulated and authorized by statute, we begin with a brief review of the law relating to the carrying of firearms in this Commonwealth. The statutes providing for the sale, transfer, possession, and carrying of firearms are set forth in the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.C.S. §§ 6101 -27 ("UFA"). In this Commonwealth, firearms lawfully may be possessed by any individual not prohibited to do so under 18 Pa.C.S. § 6105 or otherwise barred by federal law. With the exception of certain locations such as school property or court facilities, where the possession of weapons is prohibited by statute, see, e.g. , 18 Pa.C.S. §§ 912 -13, firearms lawfully may be carried in public in all parts of Pennsylvania. The manner of their carrying, however, is subject to certain statutory limitations and licensing requirements.
Except in Philadelphia, no license is required in order to carry a firearm openly on one's person. However, a county-issued license to carry a firearm is required for the carrying of a firearm "in any vehicle" or "concealed on or about" one's person, and carrying in such a manner "without a *926valid and lawfully issued license" constitutes a criminal offense, generally graded as a third-degree felony. 18 Pa.C.S. § 6106(a). The issuance of a license to carry a firearm, of course, exempts an individual from the limitations of Section 6106, and expressly authorizes the carrying of a firearm "concealed on or about one's person or in a vehicle throughout this Commonwealth." 18 Pa.C.S. § 6109(a). A license to carry a firearm further authorizes an individual to carry a firearm openly or concealed within the City of Philadelphia. 18 Pa.C.S. § 6108.6 Accordingly, "[i]n all parts of Pennsylvania, persons who are licensed may carry concealed firearms." Commonwealth v. Hawkins ,
Under Pennsylvania law, there can be no doubt that a properly licensed individual who carries a concealed firearm in public engages in lawful conduct. Indeed, millions of people lawfully engage in this conduct on a daily basis, both within this Commonwealth and across the nation.7 The Pennsylvania State Police reports that, in Pennsylvania, 237,344 licenses to carry firearms were issued in 2015; 300,565 were issued in 2016; and 290,958 were issued in 2017.8
Bearing this in mind, we turn to the authority that the Robinson rule heretofore has bestowed upon law enforcement with regard to individuals carrying concealed firearms, including the hundreds of thousands of Pennsylvanians licensed to do so. The Robinson rule envisions an encounter between a law enforcement officer and a private citizen that is not authorized by a warrant embodying a neutral and detached magistrate's determination of probable cause for a search or seizure. Although not every interaction between a citizen and a law enforcement officer implicates the Fourth Amendment, "[t]he Fourth Amendment, of course, applies to all seizures of the person, including seizures that involve only a brief detention short of a traditional arrest." Brown v. Texas ,
For purposes of the Fourth Amendment, a person is "seized" when, "in *927view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall ,
As this Court frequently has noted, warrantless interactions between citizens and police officers fall into three categories, distinguished one from another by consideration of whether the citizen has been "seized" within the meaning of the Fourth Amendment, the intrusiveness and extent of the seizure, and the justification therefor. The first type of interaction-a mere encounter-does not constitute a seizure. It generally involves a request for information and requires no particular suspicion of criminality because it carries "no official compulsion to stop or to respond." Commonwealth v. Ellis ,
We recognize only two types of lawful, warrantless seizures of the person, both of which "require an appropriate showing of antecedent justification: first, an arrest based upon probable cause; second, a 'stop and frisk' based upon reasonable suspicion." Commonwealth v. Melendez ,
"To maintain constitutional validity, an investigative detention must be supported by a reasonable and articulable suspicion that the person seized is engaged in criminal activity and may continue only so long as is necessary to confirm or dispel such suspicion." Commonwealth v. Strickler ,
Although the Robinson rule ostensibly authorizes the ascertainment of an individual's licensing status, the encounter contemplated is not merely a request for information that a citizen is entitled to ignore. Rather, the Robinson rule characterizes the carrying of a concealed firearm as per se reasonable suspicion authorizing the use of official force to seize an individual "in order to investigate whether the person is properly licensed," i.e. , whether the person is committing a criminal offense under 18 Pa.C.S. § 6106. Robinson ,
B. The Parties' Arguments
Hicks contends that, because an investigative detention must be premised upon reasonable suspicion of criminal activity, and because Pennsylvania law provides for the lawful carrying of firearms, "mere possession of a weapon, concealed or otherwise, is not 'criminal conduct,' nor is it inherently indicative of criminal activity afoot." Brief for Hicks as 12. Hicks further argues that the Robinson rule not only misapplied the Terry doctrine, but also reflected a misreading of the Superior Court's opinion in Commonwealth v. Mears ,
Finally, Hicks argues that, without recourse to the erroneous Robinson rule, no information available to the officers would allow for a finding of reasonable suspicion of criminality. Rather, Hicks notes that, as confirmed by the camera operator's video footage and the police radio broadcasts (submitted into evidence at the suppression hearing as Defense Exhibit 1 and 2, respectively), Hicks merely entered and exited a retail establishment, got into his vehicle, and attempted to drive away. Brief for Hicks at 16. Because none of this conduct gave rise to a reasonable suspicion that criminal activity was afoot, Hicks asserts that the police officers' seizure of his person violated the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution, and the evidence that the officers derived from that seizure therefore must be suppressed.10
The Commonwealth, by contrast, asserts that the per se approach of Robinson is a justifiable application of the Terry doctrine. Although the Commonwealth does not dispute the legality of carrying firearms in public throughout Pennsylvania, it emphasizes that, under the totality of the circumstances, "wholly lawful conduct *929might justify the suspicion that criminal activity [is] afoot." Brief for Commonwealth at 5 (quoting Reid v. Georgia ,
Reiterating its central premise regarding the potentially suspicious nature of lawful conduct, the Commonwealth stresses that Terry , itself, involved "purely legal activity," i.e. , walking along a public street and peering through a store's windows. Id. at 11. Although this conduct was not ipso facto criminal, the facts of Terry gave rise to reasonable suspicion that the individuals may have been "casing" the store in preparation for a robbery. Similarly, the Commonwealth asserts:
Notwithstanding that carrying a firearm is a legal act in Pennsylvania, common[ ]sense dictates where police are confronted with a person carrying a firearm concealed in his waistband and car while in public, an officer is not only justified, but duty bound to conduct a brief detention to ascertain that individual's license to do so.
Id. (emphasis in original).
Although several of this Court's previous decisions have found no justification for investigative detentions based upon anonymous reports of individuals in possession of firearms, see Jackson ,
[A]t 3:00 a.m., police received information from the operator of a city owned surveillance camera that an individual at the Gulf Station displayed a firearm to another patron at the station, and that the person with the firearm was driving a silver Chev[rolet] Impala. The video from the camera clearly shows the firearm concealed in [Hicks'] waistband and that, despite the hour, there are a number of individuals at this location. Officer Pammer also testified that the Gulf Station is located in a high crime neighborhood, where police regularly receive calls regarding drug dealing, people with weapons and loitering.
Id. (citations to Notes of Testimony omitted).11
*930C. Discussion
i. This Court's Precedent
Although this Court has not addressed the sort of per se rule that Robinson endorses, we have considered the existence of reasonable suspicion in the so-called "man with a gun" scenario, in which police receive a report from an anonymous source that there is an armed individual at a given location. In light of the parties' disparate views of this Court's earlier precedents, the most natural place to begin our analysis is this Court's decision in Lagana -a case of particular relevance to the question presented here, in that the Robinson court reasoned that its per se approach to concealed firearms was merely an express articulation of what it viewed as the "implicit foundation" of Lagana. See Robinson ,
In Lagana , this Court held that an investigative detention was supported by reasonable suspicion of criminal activity where the police received an anonymous report of an armed individual wearing a yellow raincoat at a specified location and, upon their arrival, officers observed an individual matching the description who was "casing" a restaurant with a pair of binoculars. Lagana ,
This Court clarified Lagana 's reasoning in Jackson , making clear that the presence of a concealed firearm was not dispositive in Lagana :
While the suggestion was indeed made in Lagana , that the risk posed by firearms *931should be factored into the reasonable suspicion analysis, that observation was dictum. In Lagana , an anonymous caller provided the police with a description and location of the suspect, and stated that he was armed. When the police arrived, they observed the suspect "casing" a store using binoculars, which is precisely the sort of suspicious activity which arose in Terry itself. The police therefore already had the requisite reasonable suspicion to stop and frisk Mr. Lagana, even absent any allegation that he was armed.
Jackson ,
In Hawkins , this Court, albeit in a plurality opinion, more directly addressed and rejected the notion that the mere possession of a firearm may constitute grounds for an investigative detention. Like Lagana , Hawkins involved an anonymous report of a man who possessed a firearm. Chief Justice Flaherty, writing for the Court and joined by Justices Zappala and Cappy-with Justice Nigro concurring in the result but not writing separately-opined that the anonymous tip at issue was not corroborated sufficiently, and that the police "had no independent reason to believe that the suspect may have been involved in criminal activity." Hawkins ,
In Hawkins , the Commonwealth argued that, notwithstanding the absence of any facts providing an independent basis for a finding of reasonable suspicion, the "police have a duty to stop and frisk when they receive information from any source that a suspect has a gun."
Hawkins is a non-binding plurality decision, which can be considered for its persuasive value only. However, only three months later, this Court decided Jackson , which we stated was "factually indistinguishable from Hawkins. " Jackson ,
In Jackson , the Commonwealth revisited the "radical position" that it had offered in Hawkins. This time, a Majority of the Court resoundingly rejected the Commonwealth's proposition:
The Commonwealth contends ... that the degree of danger to the police and the public from armed criminals is so great that if an anonymous caller provides a physical description of the individual, an accurate location and an allegation that the individual is armed, a Terry stop is justified. That argument *932will not withstand constitutional scrutiny. The danger to the police and public from firearms was already factored into the balance when the requirement of reasonable suspicion was articulated in Terry. To adopt the position that the Commonwealth urges is in reality to overrule Terry in favor of a lower standard of protection under the state and federal constitutions, a decision that we are not empowered to make.
Jackson ,
Unlike Hawkins , Jackson is binding precedent in this Court. Importantly, as noted above, Jackson clarified that the lawfulness of the investigative detention in Lagana was not dependent upon the presence or absence of a firearm, but rather was justified by the police officers' observations of the particular suspect's conduct. Consequently, Hicks is correct that the Robinson rule is not an accurate articulation of the "implicit foundation" of Lagana. Robinson ,
As such, we will afford the Commonwealth the benefit of the doubt and conclude that Jackson is at least arguably distinguishable from the question at bar due to the additional considerations that attend the evaluation of anonymous tips, which were at issue in Lagana , Hawkins , and Jackson , but have no application herein. We accordingly proceed to address the validity of the Robinson rule upon its own merits, notwithstanding its origin as an erroneous extension of Lagana.
Before this Court, the Commonwealth again advanced its "radical position," Hawkins ,
ii. The Terry Doctrine's Criminality Predicate
First, as is manifest from its very phrasing, the Robinson court's analysis of the basis for a Terry stop overlooks the initial and essential prerequisite that justifies the seizure. Prior to the acquisition of any evidence arising from an investigative detention, the seizure of the person must be "justified at its inception." Terry ,
Concurring in Terry to "fill in a few gaps" in the Court's opinion, Justice Harlan stressed that, "[i]n the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop."
Although the Terry decision focused primarily upon the legality of the "frisk" rather than the "stop," the United States Supreme Court subsequently has made "perfectly clear,"
The [ Terry ] Court upheld "stop and frisk" as constitutionally permissible if two conditions are met. First , the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second , to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.
Johnson ,
The Superior Court's holding in Robinson clearly subverts this fundamental principle. Rather than requiring reasonable suspicion of criminal activity to justify the initial "stop," the Robinson rule conflated that necessary antecedent with the justification for the "frisk." The court reasoned that possession of a concealed firearm in public "is sufficient to create a reasonable suspicion that the individual may be dangerous ," which, in turn, the court concluded, allows an officer to "briefly detain him in order to investigate whether the person is properly licensed." Robinson ,
The Robinson rule purports to deem constitutional the seizure of persons upon a basis manifestly inconsistent with the Fourth Amendment jurisprudence that has governed interactions between citizens and law enforcement for five decades. However, although the conflation of dangerousness with criminality is a palpable flaw in the Robinson rule, its effect would be the same if, for some other reason, a police *934officer is entitled to infer that an individual carrying a concealed firearm is engaged in some type of unlawful conduct, such that an investigative detention would be "justified at its inception." Terry ,
iii. The Terry Doctrine and the Carry of Firearms
We are, of course, not the first Court to address the Fourth Amendment ramifications of criminal laws relating to the carrying of firearms. We stress, however, that our present analysis is confined to the antecedent justification for a "stop," and we accordingly offer no opinion as to whether a police officer who has effectuated a lawful investigative detention may treat the suspect's possession of a firearm as per se authorization to "frisk" the detainee. Accordingly, decisions addressing that separate question, and the consideration of whether an "armed" individual is automatically "dangerous" for purposes of a Terry frisk, see, e.g. , United States v. Robinson ,
The Supreme Court of the United States has declined to recognize a "firearm exception" to the requirements of Terry. See Florida v. J.L. ,
Numerous state courts and federal Courts of Appeals, however, have considered Fourth Amendment seizures based solely upon the possession of firearms, with a particular eye toward the lawfulness of such activity under the statutes of the subject jurisdiction. In United States v. Black ,
Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.
*935United States v. King ,990 F.2d 1552 , 1559 (10th Cir.1993).
Id. at 540. The Tenth Circuit's decision in King , which the Black court cited, similarly held that the interest in the safety of police officers and bystanders did not justify the detention of a motorist immediately upon observation of a firearm, reasoning that "[i]n a state such as New Mexico, which permits persons to lawfully carry firearms, the government's argument would effectively eliminate Fourth Amendment protections for lawfully armed persons." King ,
Likewise in Northrup v. City of Toledo Police Dep't ,
While open-carry laws may put police officers ... in awkward situations from time to time, the Ohio legislature has decided its citizens may be entrusted with firearms on public streets. The Toledo Police Department has no authority to disregard this decision-not to mention the protections of the Fourth Amendment-by detaining every "gunman" who lawfully possesses a firearm.
In a case arising in the Virgin Islands, where the possession of a firearm in public was lawful, the Third Circuit rejected an assertion that such possession alone gave rise to reasonable suspicion of criminality. United States v. Ubiles ,
Courts of some jurisdictions have analyzed the question based upon whether, under applicable statutes, nonlicensure is an element of the crime of carrying a firearm without a license-in which case a Terry stop for mere possession is unlawful-or whether licensure serves as an affirmative defense to the criminal charge-in which case a Terry stop is lawful. See generally Barondes, supra n.7, at 326-41. In State v. Timberlake ,
The Supreme Court of the United States has not addressed whether this element-or-defense approach to concealed carry licenses is acceptable under Fourth Amendment principles. Although by no means intended as an exhaustive survey of the decisions applying this litmus, this brief discussion is amply sufficient for this Court to conclude that we do not find the approach persuasive. To characterize an investigative detention as lawful solely because licensure is an affirmative defense under the applicable statute, rather than nonlicensure serving as an element of the crime, is to obscure the fact that licensed individuals who engage in the conduct for which they have obtained licenses are, at bottom, in compliance with the requirements of the law. Accordingly, notwithstanding how such a test may apply to Pennsylvania's statutes, we find the element-or-defense approach "ultimately untenable, because it would allow a manifestly unacceptable range of ordinary activity to, by itself, justify Terry stops." Barondes, supra n.7, at 346.
We find much greater appeal in decisions of our sister states such as Commonwealth v. Couture ,
Our analysis of the question at bar is guided by fundamental Fourth Amendment principles. We 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. As set forth, above, it is not a criminal offense for a license holder, such as Hicks, to carry a concealed firearm in public.14 Although the carrying of a concealed *937firearm is unlawful for a person statutorily prohibited from firearm ownership or for a person not licensed to do so, see 18 Pa.C.S. §§ 6105 -06, there is no way to ascertain an individual's licensing status, or status as a prohibited person, merely by his outward appearance. As a matter of law and common sense, a police officer observing an unknown individual can no more identify whether that individual has a license in his wallet than discern whether he is a criminal. Unless 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 simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.
Responding to the Commonwealth's principal arguments to the contrary requires us to examine additional deficiencies in the Robinson rule, which further highlight the dangers inherent in applying per se rules-generally disfavored under the Fourth Amendment, see United States v. Drayton ,
iv. Operation as a Per Se Rule
The Fourth Amendment protects a fundamentally individual right-the "right of each individual to be let alone." Tehan v. U.S. ex rel. Shott ,
Notably, the type of seizure contemplated here does not implicate a scenario involving "special needs, beyond the normal need for law enforcement," Edmond ,
The individualized nature of the justification for a seizure is central to the Terry doctrine, inherent in the requirement that an investigative detention must be premised upon specific and articulable facts particular to the detained individual. Indeed, the Terry Court stressed that the "demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence." Terry ,
Naturally, judicial assessment of the justification for a seizure must be conducted under the "totality of the circumstances," which includes consideration of all of the facts and circumstances, including rational inferences derived from those facts, that bear upon a reasonable officer's belief as to whether criminal activity may be afoot. See , e.g. , United States v. Arvizu ,
Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like "articulable reasons" and "founded suspicion" are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances-the whole picture-must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.
Cortez ,
The Robinson rule neglects this principle. The error lies not in any assertion that the possession of a firearm can never be suspicious-it certainly can be. A police officer is entitled to view individuals' conduct in light of the "probabilities" that criminal activity may be afoot, and indisputably may draw "certain common sense conclusions about human behavior."
The deficiency in the Robinson rule is that, rather than requiring a "particularized and objective basis" for suspecting an individual, Cortez ,
The Commonwealth's arguments fare no better. The Commonwealth places great emphasis upon the notions that "there could ... be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot," Reid ,
The probabilistic nature of the inquiry, as discussed in Cortez , merely guides the totality of the circumstances test, which, as noted above, nonetheless requires some "particularized and objective basis for suspecting the particular person stopped of criminal activity." Cortez ,
In Reid , an agent of the federal Drug Enforcement Agency detained Reid and his companion at an airport, based upon his belief that Reid fit a "drug courier profile." Reid ,
We conclude that the agent could not as a matter of law, have reasonably suspected the petitioner of criminal activity on the basis of these observed circumstances. Of the evidence relied on, only the fact that the petitioner preceded another person and occasionally looked backward at him as they proceeded through the concourse relates to their particular conduct. The other circumstances describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure. Nor can we agree, on this record, that the manner in which the petitioner and his companion walked through the airport reasonably could have led the agent to suspect them of wrongdoing. Although there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot, see Terry ,392 U.S. at 27-28 ,88 S.Ct. 1868 , this is not such a case. The agent's belief that the petitioner and his companion were attempting to conceal the fact that they were traveling together, a belief that was more an "inchoate and unparticularized suspicion or 'hunch,' "Id. at 27 ,88 S.Ct. 1868 , than a fair inference in the light of his experience, is simply too slender a reed to support the seizure in this case.
Id. at 441,
Nothing about this analysis provides even a slender reed to support the Robinson rule. Although wholly lawful conduct certainly may give rise to reasonable suspicion of criminal conduct under some circumstances, and although reasonable suspicion "need not rule out the possibility of innocent conduct," Arvizu ,
v. Delaware v. Prouse
Finally, the Robinson rule cannot be salvaged by any attempt to minimize the authority contemplated by characterizing the seizure as merely a "simple request" to check a license. Brief for Commonwealth at 9. A seizure is a seizure. That the purported basis for the seizure is simply to "check" whether the suspect is committing a crime does not diminish the constitutional significance of the encounter. It does not render it any less of a seizure; it simply renders it a seizure in the absence of a particularized basis for a finding of reasonable, *941articulable suspicion of criminal activity.
In this regard, we find significant relevance in the United States Supreme Court's decision in Delaware v. Prouse ,
Unlike a border checkpoint such as those approved by the Court's decision in Martinez-Fuerte , supra , the Prouse Court determined that the "spot check" of a particular driver must be justified by individualized suspicion. This was so despite the States' "vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed." Prouse ,
The marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure-limited in magnitude compared to other intrusions but nonetheless constitutionally cognizable-at the unbridled discretion of law enforcement officials. To insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion "would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches ...." Terry ,392 U.S. at 22 ,88 S.Ct. 1868 .
Id. at 661,
Invoking Terry , the Prouse Court concluded:
Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio , supra , recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when *942they step from the sidewalks into their automobiles.
Id. at 662-63,
Nor are people shorn of all Fourth Amendment protection when they carry firearms in compliance with the laws of this Commonwealth. Firearms, too, are subject to extensive governmental regulation, at both the state and federal level. Nonetheless, the possession or carrying of firearms, although unlawful for some, cannot strip away protections of the Fourth Amendment for all of the rest.
Prouse does more than illustrate the retention of Fourth Amendment rights despite participation in a licensed and government-regulated activity. Prouse highlights a first principle that lies at the heart of the Fourth Amendment-that the government may not target and seize specific individuals without any particular suspicion of wrongdoing, then force them to prove that they are not committing crimes. To hold otherwise would be anathema to individual liberty, and contrary to "the central teaching of ... Fourth Amendment jurisprudence." Terry ,
vi. The Perspective of the Concurrence16
The Concurrence rejects this analysis, and would adopt the element-or-defense test referenced above, under which the seizure of an individual for engaging in licensed conduct is deemed permissible if licensure serves as an affirmative defense to a crime, as opposed to nonlicensure serving as an element of the offense. See supra at 935-36. The Concurrence opines that our treatment of this test is unduly dismissive given its prevalence in other jurisdictions, that our rejection thereof fails to afford sufficient deference to the manner in which the legislature chooses to define crimes, and that our reasoning may have consequences for future investigations of other licensed conduct. These are fair observations. However, the element-or-defense test comes with its own untenable consequences. Chief among these is the fact that such a test transfers to the legislature the power to erase the protections of the Fourth Amendment for any individual who seeks to comply with the legislature's own licensing requirements.
To apprehend the constitutional infirmity of the element-or-defense test, one need look no further than Prouse. In addressing whether the Fourth Amendment tolerates "spot checks" of motorists' driver's licenses, the Prouse Court made no inquiry into whether possession of a driver's license is an affirmative defense in the subject jurisdiction, or whether nonlicensure is an element of the crime of driving without a license. The Court's concern in Prouse was with "unfettered governmental intrusion" upon the rights of the individual solely at the "unconstrained discretion" of a single law enforcement officer in the field. Prouse ,
Recognizing that Prouse casts considerable doubt upon the element-or-defense test, the Concurrence offers a distinction suggested by the Tenth Circuit in United States v. Rodriguez ,
In order to deem constitutional the seizure at issue, the Rodriguez court sought to distinguish the underlying activities subject to licensing, opining that, unlike driving a car, "concealing a handgun is a clandestine act."
With due respect to the Tenth Circuit, Rodriguez ' distinction is unpersuasive. The "clandestine" nature of carrying a concealed firearm is immaterial. Carrying in such a "clandestine" manner is precisely the conduct that the license authorizes. An individual licensed to carry a concealed firearm is permitted to do so every bit as much as a holder of a driver's license is permitted to operate a motor vehicle.
As for the contribution to public safety ostensibly gained by limitless seizures of armed citizens, it bears mention that the Prouse Court was quite aware of the dangers posed by the operation of motor vehicles, see Prouse ,
As the Concurrence emphasizes, it is certainly the legislature's prerogative to define the elements of crimes and to set forth affirmative defenses. However, the constitutionality of enforcement tactics is a matter of judicial concern. The legislature is further entitled to prescribe the requirements and procedures necessary to obtain a license for otherwise-prohibited conduct. However, the issuance of a license cannot entail the deprivation of constitutional rights. Under the element-or-defense test, the legislature is imbued with the power to limit the scope of Fourth Amendment protection.17 The legislature cannot lay such a *944trap for the unwitting licensee, who obtains a license precisely for the purpose of achieving good-faith compliance with the law, yet who may be subject to unlimited seizures by law enforcement agents for the very conduct that the license permits. This is not a matter of deference to the legislature; this is a matter of freedom from unreasonable seizure under the Fourth Amendment.
The Concurrence also raises the specter of future difficulties with the enforcement of criminal laws, such as the prohibition upon the possession of marijuana in light of the recent passage of the Medical Marijuana Act, 35 P.S. §§ 10231.101 - 10231.2110. See Concurring Opinion (Dougherty, J.) at 958 n.4. However, even if our reasoning herein may reach to such a distinct matter-which we do not today decide-this is not a compelling reason to dilute the protections of the Fourth Amendment. Indeed, the element-or-defense test also has consequences beyond the case at bar, and these entail unacceptable limitations of Fourth Amendment rights.
For instance, the Concurrence relates this Court's conclusion in Commonwealth v. Bigelow ,
The element-or-defense test amounts to a "seize now and sort it out later" approach. This is antithetical to the foundational protections of the Fourth Amendment. It casts too wide a net, with no regard for the number of law-abiding citizens ensnared within. "The Terry case created an exception to the requirement of probable cause, an exception whose narrow scope" the Supreme Court "has been careful to maintain." Ybarra v. Illinois ,
Our holding is confined to the lawfulness of seizures based solely upon the possession of a concealed firearm-conduct that is widely licensed and lawfully practiced by a broad range of people. We do not render "all element-or-defense distinctions irrelevant for Fourth Amendment purposes." Concurring Opinion (Dougherty, J.) at 959 n.5. We in no way hold that the Fourth Amendment prohibits the arrest or prosecution of an individual suspected of a crime for which he may have a valid affirmative defense of, for instance, duress or the use of force in self-protection. See generally 18 Pa.C.S. §§ 309, 505. Rather, we merely hold that, with respect to the conduct at issue-in which hundreds of thousands of Pennsylvanians are licensed to engage lawfully, see supra n.8-that conduct alone is an insufficient basis for reasonable suspicion that criminal activity is afoot. We insist only upon articulable grounds to conclude that the conduct that serves as the basis for a seizure is actually suspicious in any meaningful sense of the word.
In this case, as discussed in detail below, a man stopped at a gas station to fuel his vehicle, greeted an acquaintance, paid for his gasoline, and then was seized at gunpoint by numerous police officers, forcibly restrained, removed from his vehicle, and handcuffed. The sole basis for this seizure was his possession of a concealed firearm in public-a firearm that he was entitled to possess and licensed to carry. The injustice of this scenario would not be washed away by a mere rearrangement of statutory elements and defenses. The seizure at issue was not unconstitutional due to the statutory classification of Hicks' license; it was unconstitutional because the police officers had no way of determining from Hicks' conduct or appearance that he was likely to be unlicensed and therefore engaged in criminal wrongdoing.
The Fourth Amendment does not tolerate such indiscriminate use of law enforcement power "at the unbridled discretion of police officers." Prouse ,
D. Conclusion
Although our discussion of the arguments and legal principles has been extensive, the question presented ultimately involves a straightforward application of Terry. A police officer in the field naturally relies upon his or her common sense when assessing criminal activity. When many people are licensed to do something, and violate no law by doing that thing, common sense dictates that the police officer cannot assume that any given person doing it is breaking the law. Absent some other circumstances giving rise to a suspicion of criminality, a seizure upon that basis alone is unreasonable.
In the United States of America, it is not a trivial matter to be detained under the color of state authority. Although the "stop and frisk" is a commonplace and *946essential law enforcement practice, it nonetheless is a significant intrusion upon citizen liberty, and it carries with it as well a risk of danger to both the police officer and the suspect. As this Court previously has noted: "Unnecessary police intervention, by definition, produces the possibility of conflict where none need exist." Hawkins ,
A police officer is trained to assess people and situations for danger. An officer responding to a dispatch such as the one in this case is capable of responding in a manner not amounting to a seizure by observing the suspect and the circumstances, by determining whether anyone appears to be in danger or whether a crime appears to be occurring, and by interviewing witnesses about any crimes that may have occurred before the officer's arrival. See Jackson ,
This is not a "special needs" situation, or a seizure "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers" so as to "assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Brown ,
Undoubtedly aware of the vast number of citizens licensed to carry firearms, police officers surely will not find anything otherwise suspicious about many of the particular individuals who fall within the Robinson rule's sweep. But with no other criterion beyond the fact of an individual's possession of a concealed firearm necessary to justify a seizure, the Robinson rule allows a police officer to base the decision to detain a particular individual upon an "inchoate and unparticularized suspicion or 'hunch' " that the individual is unlicensed and therefore engaged in wrongdoing. Terry ,
Crime and violence are ever-present threats in society, and it can be tempting to look to the government to provide protection from "dangerous" people with constant vigilance. However, the protections of the Fourth Amendment remain an essential bulwark against the overreaches and abuses of governmental authority over all individuals. Notwithstanding the dangers posed by the few, we must remain wary of the diminution of the core liberties that define our republic, even when the curtailment of individual liberty appears to serve an interest as paramount as public safety. "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
*947Olmstead v. United States ,
In light of all of the foregoing, it has become clear that the Superior Court patently has erred in concluding that the "possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed." Robinson ,
We accordingly overrule Robinson and those decisions of our Superior Court that have reaffirmed and applied its holding.
III. Disposition of the Instant Case
Notwithstanding the lower courts' application of an erroneous conclusion of law, there remains a question of whether Hicks' seizure nonetheless was supported by reasonable, articulable suspicion of criminal activity, such as would render the investigative detention lawful.
We reiterate that our standard and scope of review require us to assess whether the suppression court's findings of fact find support in the record, and, because it was Hicks who appealed the suppression court's order, we consider all of the Commonwealth's evidence, but only so much of Hicks' evidence as, when read fairly in context of the whole suppression record, remains uncontradicted. In re L.J. ,
At oral argument before this Court, the Commonwealth abandoned the argument advanced in its principal brief, contending instead that Hicks' judgment of sentence should be affirmed because Hicks' seizure was supported by reasonable, articulable suspicion of criminal activity. The facts giving rise to reasonable suspicion, the Commonwealth contended, were the "showing" of a firearm to another individual, near 3:00 a.m., in a high crime area, where the officer previously had responded to calls regarding criminal activity. The Commonwealth further made reference to Officer Pammer's testimony regarding "brandishing" of the firearm, but nonetheless contended that the trial court's finding of fact, referring to "showing" of the firearm, established sufficient grounds for an investigative detention. See Order, 9/18/2015, at 1 n.1. As phrased at oral argument, the Commonwealth described the information available to the officers at the time of the seizure as follows: "[Hicks] lifted up his shirt, he pulled out a weapon, showed it, put it back in his waistband, pulled his shirt over top of it, and went into the store." Oral Argument, 12/4/2018, Harrisburg.
We begin with Officer Pammer's testimony regarding Hicks' "brandishing" of the firearm. Although not a defined offense under Pennsylvania law, "brandishing"
*948suggests the use of a weapon in a threatening manner, or perhaps its display in a reckless or ostentatious fashion. For present purposes, we will assume without deciding that, if established, an individual's "brandishing" of a firearm may establish reasonable suspicion that the individual engaged in some type of violent or assaultive conduct that would constitute a criminal offense under the statutes of this Commonwealth. We turn to the evidence presented at Hicks' suppression hearing on July 14, 2015, bearing in mind the suppression court's findings of fact, which stated that Hicks "showed the firearm to another patron, put the firearm in his waistband, covered it with his shirt, and walked inside" the convenience store. Order, 9/18/2015, at 1 n.1 (emphasis added).
Officer Pammer was the sole witness at the suppression hearing. Officer Pammer testified about the information that he received before responding to the scene, which began with a "tone" over the police dispatch, which is "an indicator to all city police units ... that a serious call is unfolding and to wait for the dispatch to give it to you." Notes of Testimony ("N.T."), 7/14/2015, at 6. The tone, Officer Pammer testified, was "for an individual at the Pace Market Gulf station at Seventh and Tilghman Streets that was brandishing a firearm."
On cross-examination, defense counsel challenged Officer Pammer's use of the word "brandishing." Officer Pammer testified as follows:
[Defense Counsel]: Do you recall specifically what the dispatch would have said? I know you said brandishing a firearm, do you recall that the dispatch actually said firearm-just showed it to another individual at the gas station?
[Officer Pammer]: I don't remember that, I just remember that it was brandishing-it doesn't-they didn't state that it was pointed or-
[Defense Counsel]: Okay.
[Officer Pammer]: -or you know, threatening somebody with it, just somebody was holding a gun, along that nature.
[Defense Counsel]: And you received that information over a police radio broadcast?
[Officer Pammer]: Yes.
[Defense Counsel]: Okay. And to the best of your knowledge are those recorded?
[Officer Pammer]: They should be. Yes.
[Defense Counsel]: Okay. So, if there are recordings of those police broadcasts, they would be the true and accurate information that you received on that evening. Correct?
[Officer Pammer]: Correct.
Id. at 14-15.
There were, indeed, audio recordings of the police dispatch that morning, including a recording of the report that the camera operator provided to the police. The audio recordings were submitted into evidence as Defense Exhibit 2, along with a recording of the video feed that the camera operator was watching, submitted into evidence as Defense Exhibit 1.
This Court has carefully reviewed the audio and video evidence. Defense Exhibit 2 includes recordings of the police dispatch, the camera operator's report, and the subsequent communications between the police officers as they investigated *949Hicks' possession of his firearm.18 Most notably, the word "brandishing" is not used at any point by either the camera operator or the police dispatcher. The "tone" that Officer Pammer described clearly is audible in the dispatch recording. The tone is followed by a dispatcher's advisement that the "camera operator observed a black male, white shirt, put a gun in his waistband. He'll be next to a two-tone black Impala. Pump number six." Police Dispatch, 6/28/2014, Defense Exhibit 2 (emphasis added).
Although Officer Pammer accurately recalled other details contained within the dispatch, such as the description of Hicks' apparel and the model of automobile that he drove, Officer Pammer's testimony substituted the word "brandishing" for the much more innocuous conduct described by the dispatcher, which was merely that Hicks "put a gun in his waistband." That description provided by the dispatch was the basis for Hicks' seizure.
In light of Officer Pammer's express and unequivocal recognition that an audio recording of the dispatch would reflect "the true and accurate information" upon which the officers relied, N.T., 7/14/2015, at 15, it cannot reasonably be contended that the audio recording of the dispatch was "contradicted" by the Commonwealth's evidence, such that we must discount it from our review of the suppression court's findings of fact. Further, on cross-examination, Officer Pammer clarified that the information provided to the officers did not suggest that Hicks had "pointed" the handgun at anyone, or that he was "threatening somebody with it," but, instead, that "just somebody was holding a gun, along that nature." Id.
An audio recording of the camera operator's description of Hicks' behavior is included within Defense Exhibit 2. The camera operator provided this report after the police officers had arrived on the scene, and after Hicks already had been seized. Thus, its contents have little to no bearing upon the police officers' assessment of reasonable suspicion. See, e.g. , J.L. ,
Police Officer: All right. What exactly did you see? Did you, uh, see him take the gun out, or just his shirt lifted up?
Camera Operator: No, when he gets out of the car, he was where your car [inaudible], where that black one is now, at pump six. There was another vehicle there. He gets out of his car next to it, on the opposite side of pump six, that black car there. Gets out of the car, does a handshake with a guy, I see him putting it in his waistband and then pulls his shirt over it. I can see it clear as day that it's a firearm.
Police Officer: Copy.
Camera Operator: The gentleman he was with made sure he knew he had a firearm on him. And then walked into *950the store with it after he pulled his shirt over it. I didn't think he had a holster, I thought he just put it in the waistband.
Camera Operator Report, 6/28/2018, Defense Exhibit 2. Like the dispatcher, the camera operator does not use the word "brandishing" or otherwise describe any kind of violent or threatening conduct.
This Court also has carefully reviewed the video footage recorded by the camera operator that morning, submitted into evidence as Defense Exhibit 1, the contents of which the Commonwealth's evidence did not contradict. Because both Hicks and the Commonwealth repeatedly refer to the video's contents, we will describe what we see therein.
Hicks arrives at the Pace Mart at 2:31 a.m. and parks his vehicle at a gas pump. A second, unidentified individual already was parked at an adjacent gas pump. The individual clearly recognizes Hicks as an acquaintance, and approaches Hicks' vehicle to greet him. Hicks exits his vehicle, and his firearm becomes visible, albeit barely. Hicks either is holstering the firearm or adjusting his garments around it when the second individual reaches Hicks' driver's side door, which is still open. The individual greets Hicks, and the two men shake hands with a brief, one-armed embrace. Hicks does not appear to gesture or point to the firearm, and he does not remove it from his waistband at any point. Hicks begins to walk toward the convenience store, continuing to adjust the position of the handgun, which becomes more clearly visible for a moment. Thereafter, the handgun is holstered outside Hicks' waistband and covered by his shirt, but its outline remains visible. Hicks enters the store, exits a short time later, then returns to the gas pump, where he begins to fuel his vehicle. Hicks speaks briefly to a third, unidentified individual while he pumps gas. Hicks then reenters his vehicle and begins to pull away from the gas pump. Moments later, numerous marked police vehicles intercept Hicks' vehicle with their lights flashing.
Even viewing all of the evidence in the light most favorable to the Commonwealth, there exists no basis for a finding that Hicks was engaged in any manner of criminal conduct. There was no indication or apparent threat of violence, and no information suggesting that Hicks engaged in any type of confrontation with another individual, physical, verbal, or otherwise. Neither the camera operator's report nor the police radio dispatch suggest anything of the sort. Indeed, "[t]he video from the camera clearly shows the firearm concealed in [Hicks'] waistband and that, despite the hour, there are a number of individuals at this location." Brief for Commonwealth at 16. However, significantly, no individual expresses any visible indication of alarm at Hicks' presence, his possession of his firearm, or the manner in which he carried it. Rather, the video depicts patrons of a gas station going about their business, at least two of whom engage in seemingly friendly interactions with Hicks.
In light of defense counsel's use of the word "showed" when cross-examining Officer Pammer, N.T., 7/14/2015, at 15, we conclude that the record contains minimal support for the suppression court's finding that Hicks "showed" his firearm to another individual. Order, 9/18/2015, at 1 n.1. We find no evidentiary support for an alternative contention that Hicks "brandished" the firearm in any way, or at anyone. Further, the characterization that the Commonwealth provided at oral argument-that Hicks removed the handgun from his waistband, showed it to another individual, then placed it back in his waistband-is likewise unsupported by the evidence of record.
*951All that remains is the Commonwealth's repeated emphasis upon the time of day at which the seizure occurred and the fact that Hicks was seized in what Officer Pammer described, based upon his experience, as a high crime neighborhood. These can serve as relevant contextual considerations in a totality of the circumstances inquiry. See, e.g. , Adams ,
In consideration of the totality of the circumstances, even in the light most favorable to the Commonwealth, the facts do not support a finding of reasonable, articulable suspicion that Hicks was engaged in any manner of criminal activity on the morning that he was seized. As the suppression court found, and as confirmed by the evidence of record, Hicks was seized solely due to the observation of a firearm concealed on his person. Although such a seizure then may have been viewed as constitutional under prevailing Superior Court precedent, we reject that precedent today.
Michael Hicks was deprived of the protections of the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution, and the evidence derivative of his seizure should have been suppressed.
The judgment of sentence is vacated, and the matter is remanded for further proceedings consistent with this Opinion.
Chief Justice Saylor and Justices Todd and Donohue join the opinion.
Justice Baer joins Parts I, II.A, B., and C.(i.-v.) and files a concurring opinion.
Justice Dougherty files a concurring opinion in which Justice Mundy joins.
208 A.3d 916 (Commonwealth v. Hicks, M., Aplt.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.