Pa. High Court to Decide Whether Flight in a High Crime Area Can Result in an Investigative Stop

Matthew T. Mangino
The Legal Intelligencer
February 6, 2025

The Pennsylvania Supreme Court will decide whether unprovoked flight from the police in a high crime area provides police with the requisite reasonable suspicion to conduct an investigatory detention.

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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