Possession of a concealed firearm; reasonable suspicion for investigative detention

Commonwealth v. Hicks, 2017 WL 1176412 (Pa. Super. 2017)(unreported) allocatur granted Oct. 2, 2017, appeal docket 56 MAP 2017


Police received a radio dispatch regarding a man, later identified as Hicks, brandishing a firearm at a convenience store.  Hicks was observed with the firearm by a city camera operator, who informed officers that the man showed the firearm to another patron, put the firearm in his waistband, covered it with his shirt, and walked inside the store. Hicks eventually got back into his vehicle, a silver Chevy matching the police dispatch description. When Hicks began to drive away, police stopped Hicks’s vehicle.

When police approached Hicks, they observed him moving his hands to his waistband, prompting the officer to draw his weapon and order Hicks to keep his hands up.  Another officer held Hicks’s arms while the firearm was removed from a Hicks’s holster. Hicks was then removed from the vehicle and handcuffed. Officers smelled alcohol on Hicks and performed a search of Hick’s person, locating a bag of marijuana in Hicks’s pocket.

Police arrested Hicks and charged him with DUI, disorderly conduct, DUI—general impairment (second offense), and possession of a small amount of marijuana. Hicks filed a pretrial suppression Motion and a Motion for writ of habeas corpus as to the charge of disorderly conduct. The suppression court denied the suppression Motion, granted Hicks’s Motion for habeas corpus relief, and dismissed the charge of disorderly conduct. Following a non-jury trial, the trial court convicted Hicks of DUI—high rate of alcohol (second offense), and acquitted him of the remaining charges. Hicks was sentenced to 30 days to six months in jail and ordered to pay fines.

Hicks appealed to the Superior Court arguing that the trial court erred in its application of the “reasonable suspicion” standard in denying Hicks’s suppression motion. Specifically, Hicks contended the officers lacked reasonable suspicion to justify their search and seizure when he lawfully possessed his weapon, and there were no indications that criminal activity was afoot.

The Superior Court explained, “[t]he question of whether reasonable suspicion existed at the time of an investigatory detention must be answered by examining the totality of the circumstances to determine whether there was a particularized and objective basis for suspecting the individual stopped of criminal activity” and “[t]here is no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion to which the search or seizure entails.”

Examining the circumstances surrounding the police’s stop, the Superior Court concluded that the search and seizure was reasonably necessary to prevent Hicks from leaving the scene “in order to ascertain his identity and gather additional information” and to protect the officers’ personal safety when Hicks clothing and vehicle matched the description of a man brandishing a firearm per the police dispatch and Hicks was in possession of a concealed firearm.

In so holding, the Superior Court affirmed Hicks’s judgment, reasoning:

“[P]ossession of a concealed firearm 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.” Mason, 130 A.3d at 153 (quoting Commonwealth v. Robinson, 600 A.2d 957, 959 (Pa. Super. 1991)); see also In the Interest of D.M., 727 A.2d at 558 (stating that “[p]olice are generally justified in stopping an individual when relying on information transmitted by a valid police bulletin”). Thus, the trial court properly ascertained whether officers had a reasonable suspicion that Hicks possessed a concealed firearm in public. See Mason, 130 A.3d at 153.

The Supreme Court granted allocatur to determine the issue presented by the petitioner:

Whether the Superior Court’s bright line rule holding that possession of a concealed firearm in public is sufficient to create reasonable suspicion is a matter of such substantial public importance as to require prompt and definitive resolution by the Pennsylvania Supreme Court?

For more information, contact Kevin McKeon or Dennis Whitaker