Reasonable Suspicion to Support a Terry Stop based on Temporal and Spatial Proximity to ShotSpotter Alert
Commonwealth v. Foster, 2023 WL 4557061 (Pa. Super.) (unreported), allocatur granted Apr. 8, 2024, appeal docket 34 WAP 2024
The Pennsylvania Supreme Court will consider whether an individual’s temporal and spatial proximity to a ShotSpotter alert – an alert sent by a sensory system that uses multiple sensors to pick up a suspected gunshot to triangulate the gunshot location – is reasonable suspicion to support a Terry stop.
Superior Court summarized the background surrounding the Terry stop of Jamar Foster and resulting convictions as follows:
The trial court summarized the facts underlying Appellant’s convictions, as follows:
At approximately 2:00 a.m. on September 17, 2019, Pittsburgh Police Officer Nathan Powers was on duty when he received a ShotSpotter1 Notification of shots fired near 1439 Hoffman Street in the City of Pittsburgh. While Officer Powers was en route to the area, a second ShotSpotter Notification was received that indicated four (4) additional rounds of gunfire had been discharged in the area. As Officer Powers approached the area, he observed a vehicle parked, with the headlights on, … in an area with no other parked cars. Officer Powers observed [Appellant] in the driver’s seat of the vehicle, and a female in the passenger’s seat. Officer Powers turned on his lights and began to initiate an investigatory stop of the vehicle. [Appellant] then exited the driver’s side of the vehicle, with his back to Officer Powers, and proceeded to walk towards a private residence. Multiple units arrived on the scene as backup. Officer Powers handcuffed [Appellant] for failing to comply with his orders. At that time, Officer Powers noticed a strong smell of alcohol, and that his eyes were watery and glassy. Officer Powers then Mirandized [Appellant] and took him into custody. While [Appellant] was in the back of the police car, it was clear to Officer Powers that [Appellant] was highly intoxicated. Officer Powers checked [Appellant’s] driver’s license, and it was determined that [Appellant’s] license was DUI suspended.
1 ShotSpotter is a sensory system that uses multiple sensors to pick up a suspected gunshot to triangulate the gunshot location from a minimum of three (3) sensors and send a dispatch to the appropriate Pittsburgh Police zone station.
While Officer Powers investigated the firearm issue, he entered the vehicle. He observed that there was condensation on the interior of the windshield of the vehicle, consistent with the air conditioning having been on in the car, and that the engine was hot to touch. Based on Officer Powers[’] observations, training, and experience as a police officer, he concluded that the vehicle had recently been driven. Furthermore, Officer Powers determined that [Appellant] had been driving the vehicle, based on his observation of [Appellant’s] leaving the driver’s seat when he arrived on the scene, that the air conditioning was on and running, and that the vehicle’s headlights were on when he arrived. Officer Powers administered the [horizontal gaze nystagmus] test, which showed signs that [Appellant] was impaired. After that, [Appellant] was transferred … for an [I]ntoxilyzer [breath] test …, which showed that [Appellant’s blood alcohol content] was .200, approximately one hour and twenty-two minutes after [Appellant] was taken into custody.
Trial Court Opinion (TCO), 7/19/22, at 1-3 (unnumbered).
Appellant was charged with the above-stated offenses and, on April 9, 2020, he filed a motion to suppress. Therein, Appellant stated that “[a] seizure occurred when Officer Powers activated the lights of his police vehicle and ordered [Appellant] to return to the street.” Motion to Suppress, 4/9/20, at 3 ¶ 6. Appellant argued that Officer Powers did not have reasonable suspicion at that point to support the investigative detention of Appellant and, thus, it was illegal. Id. at 3 ¶ 7. On October 1, 2020, a hearing was conducted, at which Officer Powers was the sole witness. On October 5, 2020, the court entered an order denying Appellant’s motion to suppress. He proceeded to a non-jury trial on July 15, 2021. At the conclusion thereof, the court convicted him of the above-stated offenses.
Slip op. at 1-4. Foster appealed to Superior Court, which summarized Foster’s arguments as follows:
Appellant contends that Officer Powers lacked reasonable suspicion to conduct that investigative detention, explaining:
At the time the seizure of [Appellant] occurred, Officer Powers had access to the following specific and articulable facts: (1) there had been multiple ShotSpotter notifications in the general area where [Appellant] was eventually located, (2) those shots occurred rapidly in time and shortly before Officer Powers arrived at the scene, (3) that ShotSpotter is sometimes inaccurate (including being whole addresses off target), (4) that ShotSpotter is an audio only system providing no visual observations of any activity before police arrival, (5) that no crime of any kind was observed or reported at any time, (6) that the area where the shots occurred is residential with multiple houses nearby, (7) that the area is a high crime area, (8) that the area was mostly dark in the early hours of the morning, (9) that [Appellant] did not run or in any way flee from police, (10) that no observations of anything resembling a firearm were seen on [Appellant], (11) that [Appellant] was not carrying any items in which he could conceal a firearm, (12) that [Appellant] was entirely cooperative with police, (13) and that no commotion or obvious signs of distress or criminal activity were present at the scene from either [Appellant] or Ms. Towns, and no property damage of any kind, consistent with the discharge of a firearm, was observed.
Appellant’s Brief at 55-56.
In sum, Appellant claims that,
[a]t the time this seizure took place, the only facts that Officer Powers could have possibly relied upon were the spatial and temporal proximity of [Appellant] to the ShotSpotter alert. Because there are no other factors that could be claimed to justify reasonable suspicion, the reliability and credibility of the ShotSpotter system must be analyzed.
Id. at 56. Appellant then goes on to contend that “[a] ShotSpotter alert is akin to an anonymous tip and must be considered with more caution than known witness tips or observations.” Id. He stresses that ShotSpotter “is not free from creating a misperception for police responding to an alert[,]” as it is “an audio only system, [and] there is no video means of recording what would trigger an alert or describing potential suspects for police to then corroborate through investigation.” Id. at 57. Thus, Appellant posits that the ShotSpotter technology is even “less reliable than an anonymous tip in that the danger for misperception of provided data is just as high as with a human witness and, even worse, [it] cannot provide any description of potential suspects.” Id. at 58. Consequently, Appellant insists that police responding to a ShotSpotter alert “must investigate further before they have reasonable suspicion to stop a citizen.” Id. Because, here, Officer Powers did not see anyone “in distress and nothing that would indicate a shooting took place[,]” such as “bullet strikes in the ground on his approach, [or] … bullet holes in the vehicle[,]” and Appellant did not flee, “reach about his person[,]” or appear to be in possession of any items, Appellant contends that Officer Powers lacked reasonable suspicion to detain him. Id. at 59-60.
Slip op. at 8-9. The Commonwealth countered that:
This Court has already “addressed and deemed to be faulty” an argument that ShotSpotter is akin to an anonymous tip. Commonwealth’s Brief at 17 (citing in Commonwealth v. Raglin, 178 A.3d 868 (Pa. Super. 2018)). Specifically, in Raglin, an officer received a report from ShotSpotter that a single gunshot was detected in a high crime area. Id. at 870. A different officer was dispatched to the scene and arrived there less than a minute after the detected shot. Id. The officer observed Raglin and another man in the street, very close to the location of the shot. Id. As the officer approached, the two men separated and drove away in different vehicles. Id. The officer followed Raglin’s vehicle, which eventually parked. Id. As Raglin attempted to exit the car, the officer ordered him to place his hands on the trunk and the officer then patted Raglin down. Id. When another officer approached Raglin’s car, he observed a handgun in plain view inside the vehicle. Id. Raglin was subsequently convicted of various crimes, including possession of a firearm without a license.
Slip op. at 9-10.
Superior Court held that the trial court did not err in finding that Officer Powers possessed reasonable suspicion to detain Foster, therefore it was not necessary for Superior Court to “decide whether Appellant is correct that a ShotSpotter alert is similar in reliability to an anonymous tip,” concluding that:
the totality of the circumstances in this case were at least equivalent to, if not more significant, than those in Raglin in terms of demonstrating reasonable suspicion to validate the investigative detention. Thus, as in Raglin, we need not decide whether Appellant is correct that a ShotSpotter alert is similar in reliability to an anonymous tip. Instead, it is clear that the trial court did not err in determining that Officer Powers possessed reasonable suspicion to detain Appellant.
Slip op. at 12-13.
The Pennsylvania Supreme Court will consider the following issue:
Whether the Superior Court erred in affording too much weight to Petitioner’s temporal and spatial proximity to a ShotSpotter alert in assessing whether reasonable suspicion existed to support a Terry stop.
For more information, contact Kevin McKeon or Dennis Whitaker.