[J-7-2023] [OISA: Brobson, J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 24 EAP 2022 : Appellee : Appeal from the Judgment of : Superior Court entered on : December 21, 2021 at No. 560 EDA v. : 2021 (reargument denied February : 16, 2022) vacating and remanding : the Order entered on February 11, KEVIN JACKSON, : 2021 in the Court of Common Pleas, : Philadelphia County, Criminal Appellant : Division at No. CP-51-CR-0000888- : 2020. : : ARGUED: March 8, 2023
OPINION IN SUPPORT OF REVERSAL
JUSTICE DOUGHERTY DECIDED: September 28, 2023
The reasonable suspicion standard is not especially demanding, but it isn’t
toothless either. In my view, Officer Swinarski lacked even reasonable suspicion when
he ordered Jackson to stop. 1 Accordingly, I respectfully dissent.
1 Under the Fourth Amendment to the United States Constitution, a police order to stop
must actually be obeyed by the person to constitute a seizure. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 n.7 (1998) (“Attempted seizures of a person are beyond the scope of the Fourth Amendment.”); California v. Hodari D., 499 U.S. 621, 626 (1991) (“The word ‘seizure’ . . . does not remotely apply, . . . to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee. That is no seizure.”). Jackson did not obey Officer Swinarski’s order to stop, but instead fled from the officer. See N.T. 2/11/21 at 17, 21. Nevertheless, under our state counterpart to the Fourth Amendment, Article I, Section 8 of the Pennsylvania Constitution, a police order to stop effectuates a seizure. In Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996), this Court “reject[ed] Hodari D. as incompatible with the privacy rights guaranteed to the citizens of this Commonwealth under Article I, Section 8 of the Pennsylvania Constitution.” Matos, (continued…) The “general rule” is that a police seizure of an individual is constitutional “only if
based on probable cause to believe that the individual has committed a crime.” Bailey v.
United States, 568 U.S. 186, 192 (2013) (quotation marks and citation omitted). 2 The
seminal decision in Terry, however, “created an exception to the requirement of probable
cause[.]” Ybarra v. Illinois, 444 U.S. 85, 93 (1979). Under Terry, an officer “can stop and
briefly detain a person for investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989), quoting Terry, 392 U.S.
at 30. The officer must have “a particularized and objective basis for suspecting the
672 A.2d at 776. Moreover, Matos endorsed Commonwealth v. Jones, 378 A.2d 835 (Pa. 1977). See id. at 773-74. Jones, in turn, noted that “[i]f a citizen approached by a police officer is ordered to stop or is physically restrained, obviously a ‘stop’ occurs.” Jones, 378 A.2d at 839. Here, Jackson’s suppression motion was premised on both the federal and state constitutions, see Omnibus Pretrial Motion to Suppress, 1/7/21 at 1; N.T. 2/11/21 at 13, 43, and the trial court ruled he was seized “under Pennsylvania constitutional principles[,]” see N.T. 2/11/21 at 52-53. Additionally, the Commonwealth concedes that when “the officer told [Jackson] to stop [he] thereby ‘seized’ him for constitutional purposes.” Commonwealth’s Brief at 11. Under these circumstances, when Officer Swinarski ordered Jackson to stop, he was seized and subject to an investigative stop under Article I, Section 8, triggering the requirement of reasonable suspicion. 2 While federal and Pennsylvania constitutional law diverge on the question of what constitutes an investigative stop, see supra note 1, they are coextensive regarding the quantum and nature of evidence required for a stop, see Commonwealth v. Grahame, 7 A.3d 810, 816 (Pa. 2010) (“Pennsylvania courts have always followed [Terry v. Ohio, 392 U.S. 1 (1968)] regardless of whether the appellant’s claim was predicated on the Fourth Amendment or Article I, Section 8 of the Pennsylvania Constitution.”); In re D.M., 781 A.2d 1161, 1163 (Pa. 2001) (“Pennsylvania courts have consistently followed Terry in stop and frisk cases, including those in which the appellants allege protections pursuant to Article 1, Section 8 of the Pennsylvania Constitution.”); Commonwealth v. Wimbush, 750 A.2d 807, 810 n.2 (Pa. 2000) (“We note that Pennsylvania has consistently followed Fourth Amendment jurisprudence in stop and frisk cases.”); Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997) (“Pennsylvania has always followed Terry in stop and frisk cases[.]”).
[J-7-2023] [OISA: Brobson, J.] - 2 particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411,
417-18 (1981). “[A] mere ‘hunch’ does not create reasonable suspicion[.]” Kansas v.
Glover, 140 S.Ct. 1183, 1187 (2020), quoting Navarette v. California, 572 U.S. 393, 397
(2014). There must be “‘some minimal level of objective justification’ for making the stop.”
Sokolow, 490 U.S. at 7, quoting INS v. Delgado, 466 U.S. 210, 217 (1984). “[T]he level
of suspicion the standard requires is considerably less than proof of wrongdoing by a
preponderance of the evidence, and obviously less than is necessary for probable cause.”
Glover, 140 S.Ct. at 1187, quoting Navarette, 572 U.S. at 397. In other words, “[t]he
reasonable suspicion inquiry ‘falls considerably short’ of 51% accuracy[.]” Id. at 1188.
“Reasonable suspicion is a less demanding standard than probable cause not only in the
sense that reasonable suspicion can be established with information that is different in
quantity or content than that required to establish probable cause, but also in the sense
that reasonable suspicion can arise from information that is less reliable than that required
to show probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990). Moreover,
“reasonable suspicion ‘need not rule out the possibility of innocent conduct.’” Navarette,
572 U.S. at 403 (2014), quoting United States v. Arvizu, 534 U.S. 266, 277 (2002). In
assessing the presence of reasonable suspicion, “the totality of the circumstances ― the
whole picture ― must be taken into account.” Cortez, 449 U.S. at 417. Thus, “the
presence of additional facts might dispel reasonable suspicion.” Glover, 140 S.Ct. at
1191.
Importantly, while Terry created an exception to the probable cause requirement,
it did not insulate extralegal police conduct from judicial condemnation and the
exclusionary rule. On the contrary, Terry emphasized:
[J-7-2023] [OISA: Brobson, J.] - 3 Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.
Terry, 392 U.S. at 15. In particular, the Terry Court indicated its concern about stops
motivated by racial bias. See id. at 14 (noting “[t]he wholesale harassment by certain
elements of the police community, of which minority groups, particularly [Blacks],
frequently complain”); id. at 14 n.11 (“(i)n many communities, field interrogations are a
major source of friction between the police and minority groups. . . the friction caused by
(m)isuse of field interrogations increases as more police departments adopt aggressive
patrol in which officers are encouraged routinely to stop and question persons on the
street who are unknown to them, who are suspicious, or whose purpose for being abroad
is not readily evident.”) (quotation marks and citation omitted). 3
Here, Officer Swinarski, who was the sole witness at the suppression hearing,
testified he was on patrol at the intersection of Penn Street and Oxford Avenue in
Philadelphia. Shortly before 8 p.m., the officer heard two to four gunshots west of his
location. He drove slowly northbound on Penn Street, and then turned left on to Harrison
Street and drove westbound on Harrison. As the officer drove westbound on Harrison,
he saw Jackson running eastbound on Harrison towards him. Jackson was running on
the sidewalk, and he was the only pedestrian. He was not clutching anything or holding
3 Many courts and commentators since Terry have expressed the same concern. See generally WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT §9.1(e) (6th ed. 2020).
[J-7-2023] [OISA: Brobson, J.] - 4 anything. He was not reaching toward his waistband or pockets. He did not appear
injured. He did not change direction. Officer Swinarski got out of his patrol car and asked
Jackson why he was running. Jackson responded that he was running from the gunshots.
At that point, Officer Swinarski ordered him to stop. Jackson, however, disregarded the
officer’s order and ran. See N.T. 2/11/21 at 17-18, 25-27, 29-30, 35-36.
I agree with the Opinion in Support of Affirmance (OISA) that, while not
insusceptible to innocent explanation, the sound of multiple gunshots in this case
established reasonable suspicion of criminal activity. See OISA at 22 n.15. The sound
of gunfire in Philadelphia is potentially indicative not only of violent crime and firearms
violations, but also violations of the multiple Philadelphia-specific laws concerning the
possession and discharge of firearms. See, e.g., 18 Pa.C.S. §6108 (generally prohibiting
possession of firearms on public streets or public property in Philadelphia); Phila. Code
§10-810(1) (“No person shall fire or discharge recklessly and without reasonable cause
any rifle, gun, pistol, or other firearm.”); Phila. Code §10-815(1) (“No person shall go upon
land owned or controlled by the City or any public authority with a rifle, gun, pistol, or other
firearm or with bows and arrows for the purpose of hunting wildlife.”); Phila. Code §10-
815(2) (“No person while hunting wildlife shall discharge any rifle, gun, pistol or other
firearm or arrow into land owned or controlled by the City or any public authority.”); Phila.
Code §10-818(2) (generally prohibiting possession of firearms on public streets or public
property); Phila. Code §10-822(2) (generally prohibiting possession of firearms in
educational institutions); Phila. Code §10-833(2) (generally prohibiting possession of
firearms in or within 100 feet of elementary or secondary schools); Phila. Code §10-842(2)
(generally prohibiting possession of firearms at recreational facilities). Yet, reasonable
[J-7-2023] [OISA: Brobson, J.] - 5 suspicion of criminal activity, even serious criminal activity, is alone not sufficient to
support an investigative stop. The detaining officer must also have reasonable suspicion
“that the particular individual being stopped is engaged in [the] wrongdoing.” Glover, 140
S.Ct. at 1191, quoting Cortez, 449 U.S. at 418. It is with respect to this additionally
essential showing that I believe the Commonwealth’s evidence falls short. See In re L.J.,
79 A.3d 1073, 1085 (Pa. 2013) (“It is the Commonwealth’s burden to establish that
evidence was properly seized[.]”).
Considering the totality of the circumstances, the sole circumstance even arguably
connecting Jackson to the potential wrongdoing (i.e., the shooting) is the fact, readily
admitted by him at the time, that he was running from the gunshots. In and of itself,
running from gunshots is not criminal, suspicious, or unusual. Gunfire, of course, carries
the risk of serious injury and death. It is a normal and expected human reaction to run
from the danger. To be sure, “innocent facts . . . may give the [police] reasonable
suspicion.” Interest of T.W., 261 A.3d 409, 423 (Pa. 2021) (quotation marks and citation
omitted). However, some facts are so susceptible to varying innocent explanations as to
carry little if any weight in the calculus. See United States v. Karam, 496 F.3d 1157, 1163
(10th Cir. 2007) (“While . . . even seemingly innocent factors may be relevant to the
reasonable suspicion determination, some facts are so innocuous and so susceptible to
varying interpretations that they carry little or no weight.”) (quotation marks and citation
omitted). The fact Jackson was running from the gunshots falls into this category. There
are many wholly innocent explanations for why Jackson may have been running from the
shots. For instance, it is entirely possible he was not at or near the scene of the crime
but rather heard the shots from a distance and prudently decided to run for his own safety.
[J-7-2023] [OISA: Brobson, J.] - 6 After all, Officer Swinarski was not at or immediately proximate to the location where the
shots were fired, yet he heard them and responded accordingly. Jackson could very well
have done the same. Alternately, Jackson could have been present at the scene of the
gunfire but merely a victim, intended victim, witness, or bystander, who reasonably
determined to flee the threat of harm. See N.T. 2/11/21 at 17 (Officer Swinarski testifying
Jackson could have been victim or “good witness”). It is also conceivable Jackson neither
heard nor saw the gunshots but instead was told by someone else that shots had been
fired and decided to run. It is possible too that he saw others running, presumed they
were fleeing gunfire in a city where shootings are tragically common, and determined to
join them. The mere fact Jackson was running from gunshots is simply too amenable to
innocent interpretation to support reasonable suspicion he committed the shooting.
This is particularly so given the additional facts dispelling reasonable suspicion for
a stop. Upon seeing Jackson running, Officer Swinarski observed Jackson did not have
a gun in his hands, did not make any reaching motion indicative of his possession of a
gun, did not appear injured in any way, and did not change direction to avoid the officer.
See N.T. 2/11/21 at 26-27, 35. These exculpatory facts counteract any hunch of
criminality arising from Jackson’s flight, and solidify the absence of reasonable suspicion
in this case.
In support of its contrary conclusion, the OISA argues “Officer Swinarski witnessed
Jackson running from the location of gunshots shortly after he heard them[.]” OISA at 25;
see also id. at 30 (“Jackson was the lone individual running directly from the location of a
crime[.]”). However, Jackson never told Officer Swinarski he was running from the
location of the gunshots, only that he was “running from the gunshots[,]” N.T. 2/11/21 at
[J-7-2023] [OISA: Brobson, J.] - 7 17, and the record does not otherwise establish the location of the shooting. The full
extent of the evidence as to the location of the gunshots is Officer Swinarski’s testimony
that when he was at the intersection of Penn Street and Oxford Avenue, he heard
gunshots “west of [his] location.” Id. This vague testimony does not specify a situs for
the shooting. To say that something was heard to the “west” encompasses a very broad
range indeed, and does not pinpoint the geographic origin of the sound. Put simply,
“west” is a direction, not a location. We cannot conclude Jackson was running from the
location of the gunshots when this location is itself a mystery. In any case, to the extent
Jackson was running from the dangerous scene of a shooting, this conduct is subject to
a multiplicity of innocent explanations, too many to move the needle from bare hunch to
reasonable suspicion.
The OISA also emphasizes “Jackson was the lone individual running on the
street[.]” OISA at 25; see also id. at 22 (“Officer Swinarski encountered a single individual
― Jackson ― running from what he believed to be the source of the gunshots.”)
(emphasis in original); id. at 30 (referring to Jackson as “lone individual running”).
Although the OISA does not elaborate on the importance of the fact Jackson was alone,
its implied argument appears to be that someone must have fired the shots, and if
Jackson was the only person in the vicinity, he must have been that someone. Yet the
record does not establish Jackson was the only person in the area of the gunshots.
Officer Swinarski merely testified Jackson “was the only pedestrian.” N.T. 2/11/21 at 25.
His testimony allows for other individuals out on the street not traveling by foot, including
people in cars, sitting on front steps or porches, and standing on street corners. And he
could only credibly testify concerning what he was observing at the time: the particular
[J-7-2023] [OISA: Brobson, J.] - 8 block of Harrison Street where he encountered Jackson. There were other blocks and
other streets nearby. Officer Swinarski encountered Jackson in a dense section of the
Commonwealth’s most populous city. It was close to 8 p.m., not the middle of the night
or early morning. It is not plausible the officer and Jackson were the only two people out
on the street in the area of the gunfire.
The OISA contends “Jackson continued on his way after responding to Officer
Swinarski and gave no indication that he sought Officer Swinarski’s protection or aid
during the interaction leading up to the stop.” OISA at 22. In fact, according to Officer
Swinarski’s testimony, Jackson stopped to answer the officer’s question as to why he was
running, and took off again only after the officer told him to stop. See N.T. 2/11/21 at 21
(“The only communication prior to him running was that he stated that he was running
from the gunshots.”) (emphasis added); id. (“At that point, I told him just to stop multiple
times as I was approaching. And then he just took off on foot.”) (emphasis added); id.
at 25-26 (“Q. And instead of continuing to run and totally disregard you, the young man
answers you and tells you why he’s running? A. Yes.”); id. at 30 (“[W]hen I told him to
stop, I go around my vehicle to approach him and he takes off on foot.”) (emphasis
added); but see id. at 51 (trial court finding “the defendant proceeded to keep ― to
continue running. At which point the officer commanded the defendant to stop.”). In any
case, whether Jackson stopped to answer Officer Swinarski’s question or not, he had no
real opportunity to seek the officer’s assistance. As Jackson ran towards the officer but
was still approximately eight feet away from him, the officer asked him why he was
running. See id. at 28. Then, just as soon as Jackson answered he was running from
the gunshots, Officer Swinarski immediately commanded him to stop. See id. at 17 (“He
[J-7-2023] [OISA: Brobson, J.] - 9 stated he was running from the gunshots. At that point, I told Mr. Jackson to stop.”)
(emphasis added); id. at 28-29 (“Q. Okay. And what you do, instead of asking him was
he infirmed [sic] or shot or one of those questions, you tell him to stop? You give him an
official police command to stop, right? A. Yes.”). That Jackson did not manage to
verbalize a request for aid in the brief instant between when he was preemptively
questioned from a distance and then instantaneously ordered to stop is not meaningfully
suspicious.
Finally, the OISA’s reliance on State v. Hairston, 126 N.E.3d 1132 (Ohio 2019),
and Commonwealth v. Bryant, 866 A.2d 1143 (Pa. Super. 2005), is misplaced. See OISA
at 22 (finding case to be “akin to Hairston and Bryant”). First, these cases do not bind
this Court. See Domus, Inc. v. Signature Bldg. Sys. of PA, LLC, 252 A.3d 628, 637 (Pa.
2021) (“[D]ecisions of our sister states are certainly not binding on this Court[.]”), quoting
Koken v. Reliance Ins. Co., 893 A.2d 70, 83 (Pa. 2006); Marion v. Bryn Mawr Trust Co.,
288 A.3d 76, 93 (Pa. 2023) (“[I]t is axiomatic that Superior Court decisions . . . do not bind
this Court.”). They are also distinguishable on their facts. In Hairston, the police “knew
from personal experience that crime often occurred at night in the area where the stop
took place.” Hairston, 126 N.E.3d at 1136. In addition, “the stop occurred very close in
time to the gunshots[.]” Id. It took the police “only 30 to 60 seconds to get to the
intersection” where they viewed Hairston. Id. Further, “Hairston was the only person in
the area from which the shots emanated.” Id. Here, on the other hand, there is no
evidence the stop occurred in a high-crime area, and the trial court expressly refused to
find that this circumstance was present. See N.T. 2/11/21 at 52 (“I do not find that this
was a high-crime area. I don’t believe evidence was on the record to support that
[J-7-2023] [OISA: Brobson, J.] - 10 determination.”). 4 Moreover, the record here is silent as to the amount of time that
elapsed between when Officer Swinarski first heard the shots and ultimately encountered
Jackson. Pertinently, the officer testified he drove “slowly” in responding to the gunshots.
See id. at 17 (“I proceeded to drive slowly northbound on Penn, approaching Harrison.”).
Furthermore, the record does not establish Jackson was somehow the sole person in a
congested area of Philadelphia in the early evening, but rather merely that he was the
only pedestrian Officer Swinarski observed on the particular block of Harrison Street
where the stop occurred. See N.T. 2/11/21 at 25.
The non-binding Bryant case is also factually distinct from this one. In Bryant, the
stop occurred “in a high-crime area . . . with a high incidence of drug dealing.” Bryant,
866 A.2d at 1146-47. The officer saw Bryant “running around the corner from where [the
officer] heard the shots originate.” Id. at 1147. While Bryant was running, “other
individuals in the street were not fleeing the area of the gunshots.” Id. Presently, by
contrast, the area where Jackson was stopped was not a high-crime area, the originating
location of the gunshots is unknown, and Jackson’s conduct was not abnormal. Indeed,
Officer Swinarski testified Jackson’s running from gunshots was “[a]bsolutely” normal
behavior. N.T. 2/11/21 at 26.
I acknowledge the possibility there was in fact reasonable suspicion for the Terry
stop here but the thin record of the suppression hearing simply fails to substantiate it. To
4 The Commonwealth argues that while Officer Swinarski “did not intone the words ‘high-
crime area,” he “testified ‘there’s been a large increase in gun violence’ in the area where the stop occurred[.]” Commonwealth’s Brief at 17, quoting N.T. 2/11/21 at 20. A large increase in gun violence in an area does not make it a high-crime area. If the number of yearly shootings in an area increases from zero to one, there has been a large (100%) increase in gun violence in the area, but the area may not be fairly characterized as a high-crime area.
[J-7-2023] [OISA: Brobson, J.] - 11 the extent this is the case, this problem of proof could potentially have been avoided by
a more detailed and fulsome evidentiary presentation by the Commonwealth. See
Interest of T.W., 261 A.3d at 438 (Dougherty, J., concurring) (advising testifying police
officers in Terry cases to “provide as much detail as possible” and advising prosecutors
to “be cognizant that specificity is, where available, beneficial both at the motion stage
and on appeal”). In any event, our scope of review is, of course, confined to the record
actually before us, which, in my view, does not support reasonable suspicion. Hence, I
would reverse the Superior Court’s order and remand for further proceedings. 5
5 The Commonwealth argues in the alternative that even if the stop was not permissible
under Terry, it was lawful under other authorities permitting the police to stop individuals they reasonably believe might be able to assist them in responding to a serious crime. See Commonwealth’s Brief at 25-36. The Superior Court did not reach this argument in light of its holding there was a “lawful Terry stop.” Commonwealth v. Jackson, 271 A.3d 461, 465 (Pa. Super. 2021). Accordingly, pursuant to our usual practice, I would remand to the Superior Court to consider this unaddressed issue in the first instance. See Commonwealth v. Koger, 295 A.3d 699, 711 n.12 (Pa. 2023) (noting Court’s “usual practice” with respect to issue not addressed in lower court is to remand for further consideration).
[J-7-2023] [OISA: Brobson, J.] - 12