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PA Supreme Court Expands Fourth Amendment

Pennsylvania Supreme Court Expands Expands Fourth Amendment Protections for Firearm Owners

By Attorney David Shrager and Attorney Lyle Dresbold

Published in the Lawyers Journal of The Journal of the Allegheny County Bar Association

On May 31 the Pennsylvania Supreme Court ruled in Commonwealth v. Hicks that a person cannot be subjected to a stop and frisk simply for possessing a concealed firearm in public. In so doing they overturned a Superior Court doctrine that had been in place for nearly three decades and replaced it with a holding that could have wide reaching and still unknown impact.

The Fourth Amendment of the United States Constitution guarantees the right to be free from warrantless searches and seizures absent limited exceptions. In the landmark case of Terry v. Ohio, the United States Supreme Court created a category of seizures which are less intrusive than a custodial arrest, due to their brevity and investigative nature. To legally seize a person for this limited investigation, the police would have to be able to articulate evidence which gives rise to reasonable suspicion that criminal activity was afoot. To go further and to perform what is now known as a Terry stop or a stop and frisk, there would need to be an additional showing of a reasonable belief that the person is armed.

In Pennsylvania, in order to legally conceal a firearm on one’s person or to travel with it in a vehicle, a person must first obtain a conceal/carry license, issued by the sheriff in the county where he/she resides. In 1991, the Superior Court created a rule that has acted as a per se exception to the reasonable suspicion standard articulated in Terry. In Commonwealth v. Robinson, the court looked at whether a police officer could seize a person he/she known to be carrying a concealed firearm, for the limited investigatory purpose of determining whether the person is validly licensed to carry. The court held that a person in public who is armed poses a sufficient threat that it justifies a brief seizure by the police to ascertain whether or not the person is lawfully licensed.

The defendant in Hicks was observed by a public surveillance camera operator to be showing a gun to another person in the parking lot of a convenience store. Hicks was then seen concealing the weapon in his waistband and entering the store. The camera operator alerted police and by the time they arrived the defendant had exited the store after making his purchases and was leaving in his vehicle, when he was stopped by police. Police approached the car and removed Hicks’ gun.

They confirmed that Hicks had a license to carry and conceal the firearm, but in the process, the police discovered evidence that Hicks was driving under the influence of alcohol and that he had marijuana on his person. Hicks was later charged with DUI and possession of the marijuana.

He attempted to have the evidence suppressed arguing that the stop was illegal because the police had no reasonable suspicion that he had committed any crimes. The suppression court, and then after the Superior Court denied suppression relying on Robinson in determining that the presence of a concealed weapon alone was enough to justify the stop.

In reversing Robinson and its progeny, the Hicks court held that the stop and frisk policy that the Superior Court endorsed was in conflict with Terry and in violation of the Fourth Amendment. They reasoned that in Pennsylvania hundreds of thousands of people possess Concealed Weapons Permits and are licensed to carry firearms legally. Therefore, having a concealed firearm on your person or in your vehicle does not on its own give rise to reasonable suspicion sufficient to justify the stop.

Although all seven justices joined in the result, three wrote separately to share their concerns. Defense attorneys are already speculating as to whether this holding will have further reach than stops for guns. The court was careful to try to limit the impact of this decision but both the majority opinion and the concurrences alluded to analogous issues that look to be litigated upon these same lines. For instance, the prohibition upon the possession of marijuana in light of licenses being issued under the Medical Marijuana Act may raise the specter of future difficulties. As more people become licensed to possess and use marijuana, will the mere sight or smell of marijuana be enough to stop and question a person to determine whether they are licensed? In recognizing, and then brushing aside these and other hard questions that will inevitably follow, the court simply restates its central premise, that these possibilities are not a compelling reason to dilute the protections of the Fourth Amendment.

PA Supreme Court Fourth Amendment