The Legal Intelligencer
February 6, 2025
In 2021, following a bench trial, Phillip Shivers was convicted of violating 18 Pa.C.S.A. 6105, 18 Pa.C.S.A 6106 and 18 Pa.C.S.A 6108 under the Uniformed Firearms Act. On July 18, 2019, Philadelphia police were on regular patrol in a neighborhood known for "drug activity and gun violence.” Shivers was observed near the entrance of a nearby a 7-Eleven.
As police approached Shivers, he took off running. He was
soon detained by police where it was discovered that Shivers illegally
possessed a firearm.
Shivers sought to suppress the discovery of the firearm
based on the premise that the police violated Article I, Section 8 of the
Pennsylvania Constitution in not having reasonable suspicion to conduct an
investigator detention. The motion to suppress was denied, and he was convicted
following a bench trial. The language of Article I, Section 8 and the Fourth
Amendment are very similar.
On direct appeal to the Pennsylvania Superior Court, Shivers
challenged the trial court’s ruling dismissing his suppression motion.
There are three distinct levels of interaction between
police officers and citizens:
- a mere encounter;
- an investigative detention;
- a custodial detention.
In this instance, the police did not have probable cause to
detain or arrest Shivers. Prosecutors contend what started as mere encounter
evolved into reasonable suspicion as Shivers fled from the police while in a
high crime area.
Shivers asserted the police provoked his flight by pursuing
him as he walked away, and that the Pennsylvania Constitution provides greater
protections to an individual subject to detention than does the U.S.
Constitution.
In Illinois v. Wardlow, 528 U.S. 119 (2000), the U.S.
Supreme Court held that an unprovoked flight in a high crime area is sufficient
to create reasonable suspicion to justify an investigatory detention pursuant
to Terry v. Ohio, 392 U.S 1 (1968).
Let’s look at Terry first. On Oct. 31, 1963, while
walking the beat through downtown Cleveland, police detective Martin McFadden,
with 39 years of police experience, noticed three men acting suspiciously and
pacing in front of a jewelry store on Euclid Avenue.
McFadden, based on his years of experience was concerned the
men were “casing a job, a stick up” and were carrying weapons. McFadden
identified himself as a police officer and asked their names and searched the
three for weapons.
The searches resulted in John Terry’s arrest for possessing
a firearm without a license. He was convicted and appealed all the way to the
U.S. Supreme Court. Although the Supreme Court in Terry acknowledged
that a hunch was not enough, the court carved out a new standard of
proof—reasonable suspicion.
Some 30 years later, in Chicago, Sam Wardlow was holding a
bag on a city street known for heavy narcotics trafficking. After noticing
police officers in the area, Wardlow fled on foot. When officers caught up with
him, they conducted a protective Terry pat-down search for weapons,
their training and experience told them that weapons are usually in the
vicinity of narcotics transactions. The officers arrested Wardlow after
discovering that he was carrying a handgun.
At a suppression hearing, Wardlow claimed that in order to
stop an individual, short of actually arresting the person, police first had to
have reasonable suspicion to conduct an investigatory detention. The motion was
denied and he was convicted at trial.
Chief Justice William H. Rehnquist, writing for a 5-4
majority, held that police officers did not violate the Fourth Amendment when
they stopped Wardlow, because the officers were justified in suspecting that
the accused was involved in criminal activity and, therefore, justified in
investigating further. Rehnquist wrote "flight is the consummate act of
evasion."
In 1999, it appeared that Pennsylvania would adopt a
contrary position on flight as a factor in reasonable suspicion determinations.
In the Interest of D.M., 743 A.2d 422 (Pa. 1999), police received an
anonymous phone call about a man with a gun on a street corner in Philadelphia.
The call stated that he was a Black male and described his clothing. The
officer was only a block away when he heard the radio call. He drove to the
corner and saw D.M. who matched the description. D.M. ran from the officer and
police ultimately caught up with him.
The court held that his flight was irrelevant to the
reasonable suspicion analysis because D.M. did nothing to arouse the officer’s
suspicion before he fled. Finding the matching of the nondetailed clothing
description alone insufficient to provide reasonable suspicion for a seizure,
the court held that there was a violation of the Fourth Amendment and Article
I, Section 8.
In light of the Wardlow decision, the U.S. Supreme
Court vacated the decision in D.M. and ordered reconsideration of the
Pennsylvania Supreme Court decision. On remand, the court reversed its earlier
Fourth Amendment ruling and held that it incorrectly ruled that flight was
irrelevant to the reasonable suspicion analysis. “The totality of the
circumstances test, by its very definition, requires that the whole picture be
considered when determining whether the police possessed the requisite cause to
stop appellant,” and “flight was clearly relevant.”
In recent years, the Pennsylvania Supreme Court has limited
long accepted indicia of reasonable suspicion due to evolving legislation with
regard to firearms and marijuana.
In Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), this
court held that criminal activity justifying a stop could not be inferred from
carrying a concealed gun in public because many people have licenses to carry
firearms. The court held, the conduct at issue was solely possession of the
gun, “there remains no particularized basis upon which to suspect that Hick’s
mere possession of a concealed firearm was unlawful.”
In Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021),
the commonwealth claimed that there was probable cause to search a vehicle
solely because police smelled marijuana after a lawful traffic stop, and the
stop was in a high crime area. The Medical Marijuana Act now permits many
people to have a license to possess marijuana. As the Pennsylvania Supreme
Court, held a stop based on the mere smell of marijuana was unconstitutional.
Shivers contends the Pennsylvania Constitution, Article
I, Section 8, can go further than the Fourth Amendment to the U.S. Constitution
in protecting people during investigatory detentions. Fleeing is an
individual’s decision, and fleeing—in and of itself—is not a basis for
reasonable suspicion. Being in a high crime area is not the conduct of an
individual, but the conduct of others. Innocent people are in high crime
areas—they may live there or work there or have friends or family living there,
through no choice of their own. At times, innocent people flee from the police
in high crime areas due to a fear of dangerous and even deadly encounters with
the police.
The case is Commonwealth of Pennsylvania v. Shivers, 50
EAP 2024.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly and George and the former district attorney of Lawrence County.
He is the author of "The Executioner’s Toll." You can follow him on
Bluesky @matthewmangino.bsky.social or contact him at mmangino@lgkg.com.
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