PA Court says Cops Cannot Stop & Frisk on the Mere Belief that You Unlawfully Possess a Concealed Gun [in a concealed carry state]. There Must be Other Facts of Criminality

From [4thAmend] Officer’s belief of possession of a concealed firearm is not reasonable suspicion of unlawful use of a firearm. Prior case law from 1991 is disapproved. Commonwealth v. Hicks, 2019 Pa. LEXIS 3064 (May 31, 2019):

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, 600 A.2d 957 (Pa. Super. 1991), the Superior Court held 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.” Id. at 959 (hereinafter, the “Robinson rule”). In the instant case, the Superior Court applied the Robinson rule to deem lawful the seizure of an individual based solely upon his possession of a concealed handgun, even though he was licensed in Pennsylvania to carry a firearm in such a manner.

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.

. . .

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. 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.

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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 essential 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, 692 A.2d at 1071 (plurality).

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, 698 A.2d at 575 (reasoning that, where the available information does not give rise to reasonable suspicion, “the police must investigate further by means not constituting a search and seizure.”). Such activities preserve peace, law, and order, and do so without depriving anyone of his freedom unless there is cause to do so.

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, 443 U.S. at 51. This is the targeting of an individual, forcibly seizing and disarming him at gunpoint, removing him from a car and handcuffing him, solely to ascertain whether he might be committing a crime.

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, 392 U.S. at 27. This reflects precisely the “kind of standardless and unconstrained discretion,” Prouse, 440 U.S. at 661, that lends itself to “arbitrary invasions solely at the unfettered discretion of officers in the field.” Brown, 443 U.S. at 51. The result is an unjustifiable risk of disparate enforcement on the basis of an individual’s appearance alone, while the rights of others go unquestioned.

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.” Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).

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, 600 A.2d at 959. This holding facially contravenes established law as set forth in Terry and its progeny, demands no suspicion of criminal activity—let alone individualized suspicion—and countenances a sweeping and unjustified expansion of the authority of law enforcement to seize persons upon the basis of conduct that, standing alone, an officer cannot reasonably suspect to be criminal. Indeed, the Robinson rule does not contemplate a Terry stop at all, but rather a wholly distinct species of police intrusion, untethered from the law upon which it ostensibly is premised, and ultimately lacking any justification in the basic principles of the Fourth Amendment.