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J. S05037/2000
2000 PA Super 181
COMMONWEALTH OF PENNSYLVANIA,
:
IN THE SUPERIOR COURT OF
Appellee
:
PENNSYLVANIA
:
v.
:
:
LAVAR HAYWARD,
:
Appellant
:
No. 1396 EDA 1999
Appeal from the Judgment of Sentence entered January 22, 1999
In the Court of Common Pleas of Philadelphia County
Criminal Division, No. 98-10-0705
Before: JOHNSON, J., CERCONE, P.J.E., and OLSZEWSKI, J.
OPINION BY CERCONE: P.J.E.
Filed: June 27, 2000
¶1
Appellant, Lavar Hayward, appeals from the Judgment of Sentence
imposed after his conviction for carrying a firearm without a license and
carrying a firearm on the streets of Philadelphia.1 After review, we reverse.
¶2
On October 1, 1998, at or around 9:00 p.m., Officer Johnathan
Woodson, a Police Officer for the Temple University Police Department, was
on foot patrolling in the 2100 block of Broad Street in Philadelphia. See N.T.
Suppression Hearing, 1/22/99, at 4-5. Officer Woodson testified at
Appellant's Suppression Hearing that while he was patrolling, an
"unidentified passerby" told him that there was a group of six (6) to eight
(8) males in the park area in the 1300 Block of Dauphin Street and that one
of them was "brandishing a weapon." Id. at 5. Officer Woodson recounted
that the unidentified individual also told him that the man in the park with

1 18 Pa.C.S.A. §§ 6106, and 6108 respectively.

J. S05037/2000
the weapon was "tall," however the unidentified individual did not give any
specific estimate of height. Id. at 7. Officer Woodson also stated that the
nameless pedestrian did not provide any further descriptive identification of
the man in the park with the weapon, such as the man's race or the clothing
which he was wearing. Id. at 10, 11. Officer Woodson additionally testified
that the pedestrian who provided this information did not at any time
identify himself, nor had Officer Woodson ever seen this individual before
this occasion or at any time thereafter. Id. at 11.
¶3
Officer Woodson then proceeded to the park area in the 1300 Block of
Dauphin Street.2 He testified that it took him ten minutes to arrive at the
park. Id. at 8. When Officer Woodson arrived at the park area he was
joined by six other Temple University Police Officers, whom he had radioed
to assist him. Id. at 9, 12. Upon arrival in the park area, Officer Woodson
testified that he saw eight or nine people present in the park, including the
Appellant. Officer Woodson observed no one holding any type of weapon.
Id. at 6. Officer Woodson testified that he "examined" the group of
individuals and estimated the Appellant to be about six foot one (6' 1") to six
foot two inches (6' 2") tall, however he observed that there were also a
couple of individuals in the group who were "very close" in height to
Appellant as well. Id. at 7-8.

2 Officer Woodson estimated that the park area was 200-250 yards away
from the Temple University Campus. Id. at 7.
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J. S05037/2000
¶4
Officer Woodson and the other officers then ordered the group of
individuals in the park to "line-up" on the sidewalk. Id. at 9, 13. The
individuals complied with the officers' request. While the males were
standing on the sidewalk, Officer Woodson walked around and stood behind
them. He asked if anyone had a weapon. Id. at 9. Appellant replied that
he did. Officer Woodson and the other officers then proceeded to frisk
everyone in the group. The frisk yielded a black semiautomatic 9-millimeter
handgun, which Appellant had tucked into his waistband.
¶5
Appellant was arrested and charged with the offenses set forth, supra.
He subsequently filed a suppression motion that was denied after the above
referenced suppression hearing, which was held before the Honorable
Annette Rizzo of the Court of Common Pleas of Philadelphia. After the
suppression hearing was concluded, Appellant proceeded to a non-jury trial
before Judge Rizzo. Judge Rizzo found Appellant guilty of both charges and
imposed the aforementioned sentence. This timely appeal followed.
¶6
In this appeal, Appellant presents one issue for our consideration:
Did not the lower court err in denying appellant's motion to
suppress where the officer conducting the stop of appellant
did not possess the requisite reasonable suspicion to
justify the Terry [3] stop in violation of the Fourth
Amendment of the Federal Constitution and Article I, §8 of
the Pennsylvania Constitution?
Appellant's Brief at 3.

3 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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J. S05037/2000
¶7
On appeal from the denial of a defendant's motion to suppress, this
Court applies the following standard of review:
In an appeal from the denial of a motion to suppress our
role is to determine whether the record supports the
suppression court's factual findings and the legitimacy of
the inferences and legal conclusions drawn from those
findings. In making this determination, we may consider
only the evidence of the prosecution's witnesses and so
much of the defense as, fairly read in the context of the
record as a whole, remains uncontradicted. When the
factual findings of the suppression court are supported by
the evidence, we may reverse only if there is an error in
the legal conclusions drawn from those factual findings.
Commonwealth v. Jackson, 548 Pa. 484, 487, 698 A.2d 571, 572 (1997);
Commonwealth v. J.B., 719 A.2d 1058, 1061 (Pa.Super. 1998). As a
reviewing court, we are therefore not bound by the legal conclusions of the
suppression court and must reverse that court's determination if the
conclusions are in error or the law is misapplied. Commonwealth v.
Queen, 536 Pa. 315, 319, 639 A.2d 443, 445 (1994).
¶8
Appellant argues that Officer Woodson did not possess the requisite
reasonable suspicion to allow him to order Appellant and all the other men
present in the park to line up on the pavement for a Terry frisk, based only
on the information received from the anonymous pedestrian. From our
review of the relevant holdings of the United States Supreme Court and our
Supreme Court concerning Terry stops by police, which are predicated
solely on the word of anonymous informants, we must agree.
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J. S05037/2000
¶9
Our Supreme Court has recognized that there are three categories of
interaction between citizens and the police:
The first of these is a "mere encounter" (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to
respond. See Florida v. Royer, 460 U.S. 491, 103 S.Ct.
1319, 75 L.Ed.2d 229 (1983); Florida v. Bostick, 501
U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The
second, an "investigative detention" must be supported by
a reasonable suspicion; it subjects a suspect to a stop and
a period of detention, but does not involve such coercive
conditions as to constitute the functional equivalent of an
arrest. See Berkemer v. McCarty, 468 U.S. 420, 104
S.Ct. 3138, 82 L.Ed.2d.317 (1984); Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Finally an
arrest or "custodial detention" must be supported by
probable cause. See Dunaway v. New York, 442 U.S.
200, 99 S.Ct. 2248, 60 L.Ed. 2d 824 (1979);
Commonwealth v. Rodriguez, 532 Pa. 62, 614 A.2d
1378 (1992)(footnote omitted).
Commonwealth v. Ellis, 541 Pa. 285, 293-294, 662 A.2d 1043, 1047-1048
(1995). Accord In Re Evans, 717 A.2d 542, 544 (Pa.Super. 1998).
¶10 As our Court has recently stated:
In determining whether a "mere encounter" has risen to the
level of an "investigative detention," the focus of our inquiry
is on whether a "seizure" of the person has occurred.
Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d
1117, 1120 (Pa. 1998). Within this context, our courts
employ the following objective standard to discern whether a
person has been seized: "Whether, under all the
circumstances surrounding the incident at issue, a reasonable
person would believe he was free to leave." Commonwealth
v. Smith, 1999 PA Super 96, 732 A.2d 1226, 1232 (Pa.
Super. 1999) (emphasis added). See also Commonwealth
v. Matos, 543 Pa. 449, 672 A.2d 769, 774 (Pa. 1996).
Commonwealth v. McClease, 2000 PA Super 91, ¶ 13, 750 A.2d 320,
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J. S05037/2000
(Pa.Super. 2000). Clearly Appellant in the instant case was subjected to a
non-custodial investigative detention when the officers on the scene herded
him into a "line up" with the other individuals. Any person in Appellant's
position who was ordered by six uniformed armed police officers to assemble
into a lineup on the sidewalk could not have reasonably believed that he was
free to disregard the officers' command and leave the scene.
¶11 With respect to a non-custodial investigative detention based upon
information received via an informant's tip, our Supreme Court has stated:
In evaluating whether a stop is justified, courts consider
whether or not an informant's tip creates a reasonable
suspicion of current criminal activity based on the totality
of the circumstances. Alabama v. White, 496 U.S. 325,
328-29, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301 (1990);
Commonwealth v. Martin, 705 A.2d 887, 892 (Pa.
Super. 1997); Commonwealth v. Wilson, 440 Pa.
Super. 269, 275-76, 655 A.2d 557, 560-61 (1995)(citing
Commonwealth v. Epps, 415 Pa. Super. 231, 233-34,
608 A.2d 1095, 1096 (1992)). The informant's reliability,
veracity, and basis of knowledge are all relevant factors.
Alabama v. White, 496 U.S. 325, 328, 110 S. Ct. 2412,
2415, 110 L. Ed. 2d 301 (1990)(citing Illinois v. Gates,
462 U.S. 213, 230, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d
527 (1983)). Of course, the information supplied to the
police by the informant must contain "specific and
articulable facts" that lead the police to reasonably suspect
that criminal activity may be afoot. See Commonwealth
v. Melendez, 544 Pa. 323, 676 A.2d 226, 228
(1996)(citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct.
1868, 1880, 20 L. Ed. 2d 889 (1968)).
Commonwealth v. Allen, 555 Pa. 522, 527-528, 725 A.2d 737, 740
(1999), cert. denied, 145 L.Ed.2d. 239, 120 S.Ct. 285, 68 U.S.L.W. 3232
(1999).
- 6 -

J. S05037/2000
¶12 Thus "[i]n analyzing an anonymous tip, we must determine whether
under the `totality of circumstances' the informant's tip established the
necessary reasonable suspicion that criminal activity was afoot."
Commonwealth v. Martin, supra, 705 A.2d at 892 quoting Alabama v
White, supra, 496 U.S. at 328, 110 S.Ct. at 2415. "[Both] quantity and
quality of information are considered when assessing the totality of the
circumstances. If information has a low degree of reliability, then more
information is required to establish reasonable suspicion." Commonwealth
v. Wimbush & Commonwealth v. White, 2000 WL 382187, No. 0174
Middle District Appeal Docket 1996, No. 0025 Western District Appeal Docket
1997, ___ Pa. ___, ___ A.2d. ____ (filed 4/17/2000), slip. op. at 5.
¶13 It is a fundamental truth that an informant's cloak of anonymity may
also be a shield behind which the informer may hurl unwarranted and
unfounded accusations with impunity, secure in the belief that he or she will
never reap the consequences of his or her mendacity. It is this elemental
principle of human nature which has caused the Supreme Court of our
Commonwealth to reject the notion that the word of an anonymous
informant alone, without any knowledge of that informant's reliability or any
independent corroboration or observation of illegal activity by the police, can
serve as the basis for subjecting an individual citizen to detention and a
physical search of his or her person. This is because, in our free and
democratic society, a stop of a citizen by a police officer and a search of that
- 7 -

J. S05037/2000
citizen is not to be regarded as a minor or trifling disruption of that citizen's
constitutionally guaranteed right to be free of unreasonable searches and
seizures.
¶14 As our Supreme Court has reminded:
It is simply fantastic to urge that a careful exploration of
the outer surfaces of a person's clothing all over his or her
body performed in public while the citizen is helpless,
perhaps facing a wall with his hands raised, is a petty
indignity. It is a serious intrusion on the sanctity of the
person which may inflict great indignity and arouse strong
resentment, and it is not to be undertaken lightly.
Jackson, at 488, 698 A.2d at 573 quoting Terry, 392 U.S. at 16-17, 88 S.
Ct. at 1877, 20 L. Ed. 2d at 903.
¶15 These considerations were of paramount importance in our Supreme
Court's decision in the case of Commonwealth v. Anderson, 481 Pa. 292,
392 A.2d 1298 (1978). In Anderson, the police received a telephone call
from an anonymous caller who said there was a man who was an escapee
from a drug rehabilitation program in a bar at a particular location. The
caller described the man as an African-American male named "Perry" who
was about 5'10" with a large "bush" hair style and wearing a dark coat. Id.
at 293, 392 A.2d at 1299.
¶16 In response, two police officers were dispatched to the bar. Once in
the bar they saw Anderson who they believed matched the description of the
person referred to in the telephone call. One of the police officers initiated
conversation with Anderson and asked if he was carrying weapons. Before
- 8 -

J. S05037/2000
Anderson could respond, the other officer touched Anderson's jacket pocket
and felt what he believed to be a gun. The object was taken from the
pocket by one of the officers and it was revealed to be a .22 caliber
handgun. Anderson was arrested, charged and convicted of a variety of
offenses relating to possession of the firearm. Prior to his trial Anderson
filed a motion to suppress the firearm as evidence, which was denied. The
Court of Common Pleas of Philadelphia denied his petition for a writ of
certiorari and our Court affirmed his conviction. Id. at 294, 392 A.2d at
1299.
¶17 On appeal, the Supreme Court reversed our Court, holding that the
search of Anderson was improper under the circumstances and that
consequently the evidence of the firearm should have been suppressed. In
reversing, our Supreme Court had occasion to discuss the fundamental
public policy considerations and constitutional interests which a court must
consider and carefully weigh when determining if the actions of the police in
detaining and frisking an individual were warranted:
In striking the balance between the public interest and
the individual's right to personal security free from
arbitrary interference of law enforcement officials, the
initial inquiry must focus upon the propriety of the initial
restraint of appellant's freedom of movement.3 Adams v.
Williams, [407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612
(1977).] As noted by Mr. Justice Harlan in a concurring
opinion in Terry, the right to "frisk" depends upon the
reasonableness of a forcible stop to investigate a
suspected crime. Terry v. Ohio, 392 U.S. at 33, 88 S.Ct.
1868.4
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J. S05037/2000
The reasonableness "of such seizures depends on a
balance between the public interest and the individual's
right to personal security free from arbitrary interference
by law officers", United States v. Brignoni-Ponce, 422
U.S. at 878, 95 S.Ct. at 2579. The Terry Court made it
clear that such a balance cannot be struck where the police
are acting upon information that would not warrant a man
of reasonable caution in the belief that the action taken
was appropriate. Terry v. Ohio, 392 U.S. at 21-22, 88
S.Ct. 1868.
"Anything less would invite intrusions upon
constitutionally guaranteed rights based on
nothing more substantial than inarticulate
hunches, a result this Court has
consistently refused to sanction. See, e.
g., Beck v. Ohio, supra [379 U.S. 89, 85
S.Ct. 223, 13 L.Ed.2d 142]; Rios v.
United States, 364 U.S. 253, 80 S.Ct.
1431, 4 L.Ed.2d 1688 (1960); Henry v.
United States, 361 U.S. 98, 80 S.Ct. 168,
4 L.Ed.2d 134 (1959). And simple '"good
faith on the part of the arresting officer is
not enough." . . . If subjective good faith
alone were the test, the protections of the
Fourth Amendment would evaporate, and
the people would be "secure in their
persons, houses, papers, and effects," only
in the discretion of the police.' Beck v.
Ohio, supra, at 97, 85 S.Ct. at 229 [13
L.Ed.2d at 148]." Id. at 22, 88 S.Ct. at
1880.
Here the officers were acting upon an anonymous
tip. Because of the general nature of the description
it cannot be argued that the tip was corroborated by
the appellant's presence in the bar. Moreover, there
was nothing observable in his conduct in the
officers' presence to suggest that he was in anyway
involved in criminal activity or that he was the
person they were seeking. In fact the only basis for
the officers' belief that a crime had occurred rested
upon unverified information supplied by the
unidentified informer. Even though the intrusion
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J. S05037/2000
here may be termed modest, we do not believe that
the officers here possessed a reasonable suspicion
to justify the "stop."
3 There is no serious question that Anderson was not
free to ignore the officers' inquiry and walk away.
4 "So long as the officer is entitled to make a forcible
stop, and has reason to believe that the suspect is armed
and dangerous, he may conduct a weapons search . . ."
(emphasis added; footnote and citations omitted) Adams
v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32
L.Ed.2d 612 (1977).
Anderson, at 297-298, 392 A.2d at 1300-1301 (emphasis supplied).
¶18 Thus, this case clearly set forth the principle that if police receive
unverified information from an unknown person, which consists solely of a
generalized description of a person allegedly engaged in criminal activity at a
particular location, that information, in and of itself, does not provide the
police with the requisite reasonable suspicion to detain and search an
individual who merely happens to be at the specified location and who
matches the general description given by the informant. Some other
independent corroboration of the individual's involvement in criminal activity
is required. Mere presence alone of an individual at a particular place, as
described by the anonymous informant, does not establish that the
individual is engaged in criminal activity.
¶19 Almost twenty years after Anderson was decided, the Pennsylvania
Supreme Court reaffirmed this principle in a series of three cases:
Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997),
Commonwealth v. Kue, 547 Pa. 668, 692 A.2d 1076 (1997) and
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J. S05037/2000
Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (1997). Hawkins
and Kue are plurality opinions authored by Chief Justice Flaherty and joined
by Justices Zappala and Cappy, with Justice Nigro concurring in the result
and Justices Newman and Castille dissenting. Hawkins and Kue are
therefore not binding precedent, however they are nonetheless instructive
because their reasoning was fully adopted by a clear majority of our
Supreme Court in Jackson.4
¶20 In Hawkins, a Philadelphia Police officer received a radio call that
there was a black male with a gun standing at a particular intersection
wearing a "blue cap, black jeans and a gold or brownish coat." Id. at 654,
692 A.2d 1068. The officer arrived at the intersection three minutes after
receiving the call and observed the appellant, Hawkins, who fit the
description broadcast on the radio. The police officer stopped and frisked
Hawkins, discovering a gun in his waistband.
¶21 Later, at the suppression hearing, the police officer admitted that he
did not know the source of the information contained in the radio call, and
there was no other testimony provided at the hearing as to the basis of the
information that the officer received. Nonetheless, the suppression motion
was denied, as was appellant's writ of certiorari to the Court of Common

4 In Jackson, Mr. Justice Cappy wrote the majority opinion which was
joined by Chief Justice Flaherty, and Justices Zappala and Nigro. Justices
Newman and Castille renewed their dissents which they had previously
raised in Hawkins and Kue.
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J. S05037/2000
Pleas. Our Court affirmed the denial of the suppression motion, but the
Supreme Court reversed. Justice Flaherty, writing for the plurality, said:
If the police respond to an anonymous call that a particular
person at a specified location is engaged in criminal
activity, and upon arriving at the location see a person
matching the description but nothing more, they have no
certain knowledge except that the caller accurately
described someone at a particular location. As the United
States Supreme Court observed in Illinois v. Gates, 462
U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), the
fact that a suspect resembles the anonymous caller's
description does not corroborate allegations of criminal
conduct, for anyone can describe a person who is standing
in a particular location at the time of the anonymous call.
Something more is needed to corroborate the caller's
allegations of criminal conduct. The fact that the subject of
the call was alleged to be carrying a gun, of course, is
merely another allegation, and it supplies no reliability
where there was none before. And since there is no gun
exception to the Terry requirement for reasonable
suspicion of criminal activity, in the typical anonymous
caller situation, the police will need an independent basis
to establish the requisite reasonable suspicion.
Hawkins, at 656-657, 692 A.2d at 1070-1071. Justice Flaherty made clear
that there is no automatic "man with a gun" exception to the requirement
that the police have an independent basis, beyond that of the information
received from an anonymous source, to justify a stop and frisk of an
individual.
¶22 In the companion case of Commonwealth v. Kue, 547 A.2d 668, 692
A.2d 1076 (1997), decided the same day as Hawkins, Chief Justice Flaherty
again authored a plurality opinion invalidating a stop and frisk of an
individual, which was, once more, based solely on the police receipt of
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J. S05037/2000
anonymous information from an unknown source. In Kue, the police
received a radio report that an Asian male, who was wearing a striped shirt,
was "armed with a gun" and standing at a particular street corner. Three
minutes after receiving the report, the officer arrived at the street corner
referred to in the tip. He saw four Asian males standing on the corner, and
he proceeded to stop and frisk each of them. During the course of the frisk
the police officer discovered that appellant Kue was carrying a gun tucked in
his waist band. As in Hawkins, the source of the tip was never determined,
but the evidence was not suppressed by the Municipal Court. A writ of
certiorari to the Court of Common Pleas of Philadelphia was denied and our
court affirmed, holding that the police had met the constitutional
requirements for a lawful Terry stop.
¶23 Again the Supreme Court reversed. Justice Flaherty wrote:
[I]n order for police to act on an anonymous tip, the Terry
requirement of reasonable suspicion of criminal activity
must still be satisfied and must be independent of the
telephone tip itself. Here, there was no independent
reason to believe that criminal conduct was afoot, and the
police officer, therefore, had no reason to search anyone,
whether it was the man with the striped shirt or his
companions.
Id. at 671, 692 A.2d at 1078.
¶24 Finally in Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571
(1997) the plurality holdings of Hawkins and Kue acquired the force of
binding precedent. In Jackson, the police received a radio report that a
man with a green jacket was carrying a gun and could be found in a
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J. S05037/2000
particular location. Within two minutes of receiving the report, the officer
arrived at the location where the individual was reported to be and observed
an individual with a green jacket, the appellant Jackson, merely standing
there and doing nothing else. The police officer exited his vehicle and
frisked Jackson. During the course of the search, a small key box fell to the
ground near where Jackson was standing. The key box contained cocaine.
Id. at 487, 698 A.2d at 572. Jackson was arrested and sought to have the
evidence of the cocaine suppressed. This suppression motion was denied by
the Municipal Court of Philadelphia and upheld by both the Court of Common
Pleas and our Court.
¶25 Our Supreme Court reversed. Relying in part on its prior rationale in
Hawkins, the Court said:
This case is factually indistinguishable from Hawkins.
In Hawkins, we held that before the police may undertake
a stop and frisk on the basis of an anonymous tip of a man
with a gun, the police must establish that they have a
reasonable suspicion that the individual is involved in, or
about to commit a crime. If the tip contains sufficient
information, the police can do this by corroborating
sufficient details of the tip. Otherwise, the police
must investigate further by means not constituting a
search and seizure. If, as a result, they acquire sufficient
information to give rise to a reasonable suspicion that the
individual is armed and dangerous, they may then initiate
a Terry stop. Neither condition was met in this case, and
therefore the search was illegal.
Id. at 493, 698 A.2d at 575 (emphasis supplied). Our Supreme Court also
expressly rejected the Commonwealth's argument that so long as the
anonymous tip provides a physical description of an individual, an accurate
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J. S05037/2000
location where the individual may be found, and an allegation that the
individual is armed, then a Terry stop is justified. Id. at 492, 698 A.2d at
575.
¶26 Hence, Jackson established that a simple lone statement by an
anonymous individual that a person in a particular location has a gun does
not, in of itself, furnish the requisite reasonable suspicion to make an
investigative detention of that person constitutionally permissible under both
the Fourth Amendment to the United States Constitution and Article I
Section 8 of the Pennsylvania Constitution.5 Some additional corroboration
of that person's involvement in criminal activity is required before a Terry
stop may be undertaken.
¶27 The Supreme Court of the United States unanimously reached the
same conclusion in the recent case of Florida v. J.L., 120 S.Ct. 1375, 146
L.Ed.2d. 254, 68 U.S.L.W. 4236 (2000). In that case, the police received an
anonymous phone tip that there was a young black male standing at a

5 Our Supreme Court specified in Jackson that it was resolving the issue of
the legality of the stop and frisk based on both Article I Section 8 of the
Pennsylvania Constitution and the Fourth Amendment to the United States
Constitution. Id. at 488, 698 A.2d at 572-573. The Court noted that the
requirements for a constitutional "stop and frisk" of an individual by the
police are the same pursuant to Article I, Section 8 of the Pennsylvania
Constitution as they are under the Fourth Amendment to the United States
Constitution. Id. See also Wimbush/White, supra, slip op. at 4, fn. 2.
Commonwealth v. Melendez, 544 Pa. 323, 327-328, 676 A.2d 226, 230
(1996).
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J. S05037/2000
particular bus stop, wearing a plaid shirt, and carrying a gun. Officers
proceeded to the bus stop, and, when they arrived there, they saw three
black males, one of whom was wearing a plaid shirt. However, the officers
observed nothing which would lead them to conclude that the individuals at
the bus stop were engaged in illegal activity. They did not see a firearm, nor
did any of the individuals make any threatening or unusual movements.
Nevertheless, the officer immediately approached J.L, the individual wearing
the plaid shirt, and told him to put his hands up on the bus stop. The officer
then proceeded to frisk him, and, as a result of the frisk, the officer
discovered a handgun concealed in J.L's pocket. J.L. was arrested and
charged with carrying a concealed firearm without a license and possession
of a firearm while under the age of 18. Id. at 1377, 146 L.Ed. 2d at 259.
¶28 Prior to trial J.L. sought suppression of the firearm as the fruit of an
unlawful search. Both the trial court and the Florida Supreme Court agreed
that the evidence should have been suppressed, since the search was invalid
under the Fourth Amendment to the United States Supreme Court. Florida
sought review from the United States Supreme Court which granted
certiorari. The unanimous Court agreed that the Terry stop and frisk
conducted by the officer was improper since the anonymous tip itself did not
provide the requisite reasonable suspicion for such action.
¶29 Writing for the unanimous Court Justice Ginsburg said:
In the instant case, the officers' suspicion that J.L. was
carrying a weapon arose not from any observations of their
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J. S05037/2000
own but solely from a call made from an unknown location by
an unknown caller. Unlike a tip from a known informant
whose reputation can be assessed and who can be held
responsible if her allegations turn out to be fabricated, see
Adams v. Williams, 407 U.S. 143, 146-147, 92 S.Ct. 1921,
32 L.Ed.2d 612 (1972), "an anonymous tip alone seldom
demonstrates the informant's basis of knowledge or veracity,"
Alabama v. White, 496 U.S., at 329, 110 S.Ct. 2412. As we
have recognized, however, there are situations in which an
anonymous tip, suitably corroborated, exhibits "sufficient
indicia of reliability to provide reasonable suspicion to make
the investigatory stop." Id., at 327, 110 S.Ct. 2412. The
question we here confront is whether the tip pointing to J.L.
had those indicia of reliability.
In White, the police received an anonymous tip
asserting that a woman was carrying cocaine and predicting
that she would leave an apartment building at a specified
time, get into a car matching a particular description, and
drive to a named motel. Ibid. Standing alone, the tip would
not have justified a Terry stop. Id., at 329, 110 S.Ct. 2412.
Only after police observation showed that the informant had
accurately predicted the woman's movements, we explained,
did it become reasonable to think the tipster had inside
knowledge about the suspect and therefore to credit his
assertion about the cocaine. Id., at 332, 110 S.Ct. 2412.
Although the Court held that the suspicion in White became
reasonable after police surveillance, we regarded the case as
borderline. Knowledge about a person's future movements
indicates some familiarity with that person's affairs, but
having such knowledge does not necessarily imply that the
informant knows, in particular, whether that person is
carrying hidden contraband. We accordingly classified White
as a "close case." Ibid.
The tip in the instant case lacked the moderate indicia of
reliability present in White and essential to the Court's
decision in that case. The anonymous call concerning J.L.
provided no predictive information and therefore left the
police without means to test the informant's knowledge or
credibility. That the allegation about the gun turned out to be
correct does not suggest that the officers, prior to the frisks,
had a reasonable basis for suspecting J.L. of engaging in
unlawful conduct: The reasonableness of official suspicion
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must be measured by what the officers knew before they
conducted their search. All the police had to go on in this
case was the bare report of an unknown, unaccountable
informant who neither explained how he knew about the gun
nor supplied any basis for believing he had inside information
about J.L. If White was a close case on the reliability of
anonymous tips, this one surely falls on the other side of the
line.
Florida contends that the tip was reliable because its
description of the suspect's visible attributes proved accurate:
There really was a young black male wearing a plaid shirt at
the bus stop. Brief for Petitioner 20- 21. The United States as
amicus curiae makes a similar argument, proposing that a
stop and frisk should be permitted "when (1) an anonymous
tip provides a description of a particular person at a particular
location illegally carrying a concealed firearm, (2) police
promptly verify the pertinent details of the tip except the
existence of the firearm, and (3) there are no factors that
cast doubt on the reliability of the tip...." Brief for United
States 16. These contentions misapprehend the reliability
needed for a tip to justify a Terry stop.
An accurate description of a subject's readily
observable location and appearance is of course
reliable in this limited sense: It will help the police
correctly identify the person whom the tipster means
to accuse. Such a tip, however, does not show that the
tipster has knowledge of concealed criminal activity.
The reasonable suspicion here at issue requires that a
tip be reliable in its assertion of illegality, not just in its
tendency to identify a determinate person.
Id. 120 S.Ct. at 1378-1379, 146 L.Ed.2d. at 260-261 (emphasis supplied).
¶30 The Court also made clear that there is no automatic firearm exception
to the Terry rule. The Court acknowledged that firearms are dangerous
instrumentalities, however the Court reminded that they had already
accounted for this factor in allowing Terry stops on the basis of reasonable
suspicion and not requiring that police officers meet the higher standard of
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probable cause. The Court pointed out that were they to carve out such a
per se firearms exception, then there was no limit to the number of
exceptions which could be created to justify Terry frisks based on mere
anonymous assertions of criminal conduct. The Court noted: "If police
officers may properly conduct Terry frisks on the basis of bare-boned tips
about guns, it would be reasonable to maintain under the above-cited
decisions that the police should similarly have discretion to frisk based on
bare-boned tips about narcotics. As we clarified when we made indicia of
reliability critical in Adams and White, the Fourth Amendment is not so
easily satisfied." Id. 120 S.Ct. at 1380, 146 L.Ed.2d. at 261-262.
¶31 Very recently in Wimbush/White, supra, our Supreme Court held
that an anonymous phone tip that a black man named "Tony" would be
driving a white van on a particular road and carrying drugs was insufficient,
by itself, to provide reasonable suspicion for a traffic stop of a van being
driven by an individual who appeared to be the subject of the tip. The Court
specified that the police needed "something more" than the anonymous tip
to justify conducting an investigatory stop of the subject's vehicle, namely
independent corroboration of criminal activity on the part of the subject. Id.
slip op. at 9-10.
¶32 The Court also held, in a companion case, that an anonymous
telephone tip which conveyed that a black man with drugs, wearing a white
shirt and shorts, would be exiting a particular apartment complex and
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getting on a black bicycle was an insufficient basis for an officer to perform a
Terry stop and patdown of an individual who was leaving the named
apartment complex and who happened to match the description given in the
tip. Again the Court noted the need for "something more" than the tip itself
to justify the detention. Id. , Slip. Op. at 7.
¶33 The Court said:
There was, however, no corroboration of the tipster's
allegations of criminal conduct to justify Officer Matthew's
stop. While White's appearance was consistent with the
anonymous caller's overly general description and White did
exit the housing complex on the described bicycle, Officer
Matthews observed no unusual conduct which would suggest
that criminal activity was afoot. As such, Officer Matthew's
surveillance produced no reason independent of the
unreliable, anonymous tip to suspect that White was involved
in criminal conduct. Rather, the only basis for Officer
Matthew's belief that a crime had been committed remained
the information obtained from the uncorroborated tip that
bore no indicia of reliability. Under Jackson, this basis is
simply not adequate to establish the reasonable suspicion
required to conduct an investigatory stop.
Wimbush/White, slip op. at 7.
¶34 We deem the articulated legal principles in the cases discussed above
controlling in the case sub judice. The mere fact that this particular tip of a
man with a weapon was conveyed in person by an anonymous individual,
rather than via telephone call, does not compel a different result. The
informant who provided the initial information to the police officer was still
an anonymous individual. It is the pedestrian informant's complete
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anonymity and corresponding lack of any indicia of his reliability that is a
critical factor.
¶35 As the United States Supreme Court has recognized, if an informer is
known to the police, or identifies him or herself to the police, then there is
an indicia of reliability attached to the tip, because the informant has placed
himself or herself at risk for prosecution for giving false information to the
police if the tip is untrue. See Adams v. Williams, supra (word of
pedestrian informer that individual was armed and carrying drugs was valid
basis for Terry stop since informer was deemed reliable because his identity
was known to the police and because he had provided reliable information to
the police in the past as part of criminal investigations). There is, however,
no such inherent indicia of reliability in the word of an anonymous informer
who has never cooperated with the police in the past or who does not
disclose his or her identity to the police. Clearly if the police do not even
know an informant's name, or have never had any dealings with the
informer on prior occasions, then it cannot reasonably be said that they have
any adequate basis to ascertain anything about the informant's reliability,
veracity, or the accuracy of his or her tip.
¶36 Merely because the unknown tipster in the case at bar conveyed his
information in person to the police as opposed to telephonically did not
automatically endow the information contained within his tip with greater
presumed accuracy and reliability. Nor did it establish that he was acting
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with veracity. The individual who approached the officer on the street was
completely unknown to him. The officer had never seen this individual
before or had any knowledge that this individual had provided accurate and
reliable information to the police in the past. The individual did not identify
himself to the officer, nor did he accompany the officer to the park to point
out the individual who was "brandishing the weapon."
The nameless pedestrian did not appear at the Appellant's hearing to testify
as to his observation that he saw the Appellant "brandishing a weapon." The
pedestrian was and is, in all respects, a completely anonymous individual,
and as such, his reliability is equivalent to that of an unknown individual who
telephones an anonymous tip to the police that there is a man with a gun in
a particular location.
¶37 Since the identity and veracity of the pedestrian informant remained
unknown, there was therefore no objective basis under these particular
circumstances for the officer to conclude that the information provided by
this individual was accurate or reliable. Thus, the officer needed "something
more" than the tip itself to effectuate a Terry stop of an individual who
might possibly be the subject of the tip. He needed some independent
corroboration of that individual's involvement in criminal activity.
¶38 However the officer upon arriving in the park did not independently
observe Appellant or any of the other individuals present engaging in
anything remotely resembling criminal activity. Like the defendants in
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Anderson, Hawkins, Kue, Jackson and J.L., the Appellant and the other
individuals in the park were merely present in a public area when the officer
arrived on the scene. The tip itself provided no specific predictive basis as to
the activities of any of the individuals present in the park that would not be
known to anyone in the public at large. There was therefore no other basis,
aside from the word of the anonymous pedestrian, to infer that Appellant
had been actively involved in the commission of a crime or would be actively
involved in the commission of a crime in the immediate future.
¶39 Additionally, the anonymous pedestrian's description of the individual
allegedly "brandishing a weapon" was considerably less detailed than the
descriptions conveyed by the anonymous callers in Anderson, Hawkins,
Kue, Jackson and J.L. In those cases, the anonymous callers specifically
described the race and clothing of the individual who was the subject of the
tip. Nevertheless, as discussed above, those descriptions, though detailed,
were held to be insufficient bases to justify Terry stops of individuals who
merely matched the descriptions.
¶40 In the case at bar, all the anonymous pedestrian told the officer was
that there was a "tall man in the park brandishing a weapon." The
pedestrian did not provide any other identifying characteristics of the
individual to the officer. Indeed, the officer testified that when he arrived at
the park ten minutes after encountering the pedestrian he saw eight (8) or
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nine (9) individuals in the park, some of whom were close in height to the
Appellant. See N.T. Suppression Hearing, supra at 8.
¶41 It therefore logically follows that if a detailed physical description given
by an anonymous informant of an individual allegedly engaged in criminal
activity is, in and of itself, an insufficient basis for an investigative detention
of a subject who simply matches that detailed description, then a skeletally
vague description of a "tall man brandishing a weapon" certainly cannot
provide the requisite reasonable suspicion for a detention. Such a generic
description as that provided by the pedestrian to the officer in this case
constitutes the veritable essence of vagueness. Indeed, if we were to accept
the rationale that the officer was permitted to stop and frisk on the basis of
this skeletally vague description, then any male citizen who was present in
the park at the time the officer arrived, and who the officer subjectively
thought was "tall" would have been subjected to a Terry stop. This is
constitutionally impermissible.
¶42 It is also for this reason that we deem the cases of In the Interest of
S.D., 633 A.2d 172 (Pa.Super. 1993) and Commonwealth v. Collazo, 692
A.2d 1116 (Pa.Super. 1997), which the Commonwealth has advocated as
controlling authority, inapplicable to the instant case. Both of these cases
involved significantly different factual circumstances than those present in
the case at bar.
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¶43 In the case of In the Interest of S.D., 633 A.2d 172 (Pa.Super.
1993) a police officer testified that he spoke with a pedestrian at 5:25 a.m.
who claimed that there were "two armed black men" with drugs around the
corner. Id. at 173. The officer immediately proceeded to the location where
the pedestrian told the officer the men would be standing, which was a mere
fifty (50) feet away. Id. at 174. Upon arrival, the officer observed only two
black men in the exact location where the pedestrian said that they would
be. Id. at 174. The officer executed an immediate patdown search and
discovered drugs.
¶44 Our Court upheld the legality of the stop and frisk. However, in doing
so our Court focused on the existence of other corroborating factors, which
gave the officer an independent basis to act on the informant's tip.
Specifically we noted that the area where the encounter with the pedestrian
took place and the area where the individuals were arrested were areas with
a high incidence of drug trafficking. We also noted the time of the morning,
5:25 a.m. Id. at 174. Thus we concluded: "The time and the place of the
encounter in this case provided an independent basis for the officer to act on
the informant's tip." Id.
¶45 As the Commonwealth acknowledges, there is no mention or
discussion in S.D. as to whether the investigating officer obtained or
previously knew the identity of the pedestrian, or whether the pedestrian
had previously provided reliable information to the police. However,
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significantly, in our Court's discussion of the concerned citizen we said:
"Identified citizens who report their observations of criminal activity to the
police are assumed to be trustworthy, in the absence of special
circumstances." Id., 633 A.2d 174 at f.n.1. Our Court derived its authority
for this proposition from the case of Commonwealth v. Bruner, 564 A.2d
1277 (Pa.Super 1989), a case in which an identified and specifically
named individual, who had been the victim of an assault, had filed a
complaint with the police. In this complaint, the victim gave the police a
detailed report in which he said that he personally observed marijuana and
cocaine in a particular apartment. Our Court held that the specific
information provided by this "named informant" was sufficient to support an
affidavit of probable cause for a search warrant of the apartment. Id. 564
A.2d at 1282. Thus, this tends to suggest that our Court in S.D. was dealing
with a named citizen informant.
¶46 Nevertheless, even if we assume arguendo that the informant in S.D.
was unnamed and unknown, this case is still distinguishable on its facts
alone. Unlike the pedestrian in S.D., the pedestrian in the case at bar
provided no identifying characteristics of the person "brandishing a weapon,"
just that he was "tall." Nor was there any testimony in the instant case as
to the nature of the area in which Officer Woodson spoke with the pedestrian
or the nature of the park, which tended to establish that these areas were
high crime areas in which greater than normal numbers of people had been
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arrested for incidents involving guns and drugs. In S.D. there was such
specific testimony, which we noted gave the officer an independent
corroborating basis for the tip. Moreover, the time of the evening in which
Appellant, an adult male, was in the park was much earlier than the time in
which the defendant in S.D., a juvenile, was observed in a public area.6
Furthermore, it also took Officer Woodson ten minutes for him to arrive at
the park, whereas the investigating officer in S.D. proceeded immediately
and directly to the scene designated by the pedestrian, which was a short
distance away. All of these distinguishing factors establish that this case
cannot be considered controlling authority.
¶47 In Commonwealth v. Collazo, 692 A.2d 1116 (Pa.Super. 1997) a
police officer was exiting the police station when he was approached by a
man who told the Officer that there was a man selling drugs at a nearby
intersection. The man specifically described the individual as "wearing a
black hat and blue shirt and riding a gold bicycle." Id. at 1117. The officer
immediately proceeded to the intersection and observed an individual, the
defendant, who was wearing a black hat, a blue shirt, and straddling a gold
bicycle. The officer approached the defendant and engaged him in

6 Philadelphia has a curfew ordinance specifically prohibiting juveniles under
the age of eighteen (18) from being out on the city streets after 10:30 p.m.
and before 6:00 a.m. See Philadelphia Code of Ordinances 10-303. In
Interest of William M., 655 A.2d 158 (Pa.Super. 1995), appeal denied,
542 Pa. 649, 666 A.2d 1058 (1995).
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conversation. The officer told the defendant that he had information that he
was selling drugs. The defendant denied the allegation. The officer then
asked the defendant if he could search him and his bicycle. The officer
explained to the defendant that he could stop the search at any time. At
that point, the defendant gave his consent for the search to proceed. The
search yielded a knife and some marijuana, and, as a result, the defendant
was arrested. Id.
¶48 The defendant sought to have the evidence of the search suppressed;
however, the trial court denied the suppression motion, and this denial was
affirmed by our Court. Our Court rejected the defendant's argument that
the stop and questioning was not justified based solely on the pedestrian
citizen's tip. However, in arriving at this conclusion we expressly noted that
the description of the person involved in criminal activity given by the citizen
to the officer was very detailed and specific. Id. at 118. This is again quite
unlike the description given by the pedestrian in the instant case.
¶49 Moreover, as in S.D., supra, there was no mention by our Court in
Collazo as to whether or not the citizen who provided the initial information
had identified himself to the officer or was previously known to the officer as
having provided reliable information. Notably, however, our Court, in its
discussion, once more chose to rely on a citation from S.D. for the
proposition that "Identified citizens who report their observations of
criminal activity to police are assumed to be trustworthy in the absence of
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special circumstances." Id. at 1118 citing S.D. 633 A.2d at 174, n.1
(emphasis supplied).
¶50 Also, the police officer in Collazo did not immediately subject the
defendant to a detention or pat down search on the basis of the tip alone.
As a result of the tip, the officer in Collazo first merely approached the
defendant and engaged him in conversation. The officer in the case at bar
immediately detained Appellant and the others upon his arrival in the park.
This case is therefore also factually inapposite.
¶51 Our Court is obliged to follow the precedent as set forth by our
Supreme Court. See Foflygen v. Zemel, 615 A.2d 1345, 1353 (Pa.Super.
1992), appeal denied 535 Pa. 619, 629 A.2d 1380 (1993) ("As an
intermediate appellate court, this Court is obligated to follow the precedent
set down by our Supreme Court."); See also Commonwealth v.
Randolph, 553 Pa. 224, 230, 718 A.2d 1242, 1245 (1998) ("It is a
fundamental precept of our judicial system that a lower tribunal may not
disregard the standards articulated by a higher court."). As our Supreme
Court has recognized, to allow police to detain any individual based simply
on vague and uncorroborated allegations of criminal activity made by an
anonymous individual, who then vanishes like an ephemeral specter after
conveying this information, would eviscerate the guarantee afforded every
citizen by the United States and Pennsylvania Constitutions to be free from
unreasonable searches and seizures. The anonymous tipster may have, as
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the Supreme Court stated in Jackson supra, merely an unparticularized
hunch, or perhaps even worse, harbor a sinister desire to harass another
individual by making that individual the subject of an unwarranted police
detention or search. As Justice Stevens has also cogently observed, were
courts to sanction Terry stops solely on the basis of anonymous tips then
"every citizen is subject to being seized and questioned by any officer who is
prepared to testify that the warrantless stop was based on an anonymous tip
predicting whatever conduct the officer just observed." Alabama v. White,
supra, 496 U.S. at 333, 110 S.Ct. at 2418 (Stevens J. dissenting)
¶52 This is not to say that anonymous tips are without any worth or utility.
Clearly anonymous tips have useful value to the police in that they serve as
the basis and starting point of further investigation. Our Supreme Court has
noted:
As explained in Hawkins, where the police are acting on
information supplied anonymously, the public will receive its
full measure of protection by police who act within
constitutional restraints. Hawkins, 547 Pa. at 657-658, 692
A.2d at 1071. When the police receive unverified information
that a person is engaged in illegal activity, the police may
observe the suspect and conduct an investigation. If police
surveillance produces a reasonable suspicion of criminal
conduct, the suspect may be stopped and questioned.
Wimbush/White, supra, slip op. at 6. Accord Martin, supra, 705 A.2d at
893, n.5.
¶53 In sum, the officer in the instant case was certainly free to investigate
further on the basis of the anonymous pedestrian's tip, and he is to be
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commended for promptly proceeding to the park for the purposes of
checking out the anonymous pedestrian's report. However, as the Supreme
Court has made clear, the anonymous tip itself was not a basis for the officer
to make an immediate Terry stop absent some independent corroboration
by him of criminal activity. The officer was therefore not free to immediately
detain every individual whom he saw on the belief that they might be the
"tall" individual the unidentified pedestrian was referring to. Detaining and
forcing an individual to be subjected to the indignity of an impromptu public
police lineup requires more reasonable suspicion of that citizen's
involvement in criminal activity than vague uncorroborated allegations of an
anonymous pedestrian.
¶54 Because the physical evidence seized from Appellant's person was
obtained by contravening his rights under the Fourth Amendment to the
United States Constitution and Article 1, Section 8 of the Pennsylvania
Constitution, we reverse the order of the Court of Common Pleas denying
Appellant's suppression motion, and we remand for a new trial. We further
order that the evidence obtained during the search of the Appellant be
suppressed in any future proceeding.7

7 We note also that the fact that Appellant's admission to possession of a
gun in response to Officer Woodson's question does not establish consent for
the pat down search. Appellant had already been illegally detained when he
made this statement. It is axiomatic that consent obtained from a
defendant who has been detained in the absence of any reasonable
suspicion will not support a search, since the consent is the product of the
(Footnote continued on next page)
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¶55 Reversed and remanded for proceedings consistent with this decision.
Jurisdiction relinquished.

illegal detention and not an independent act of free will. Commonwealth v.
Wright, 672 A.2d 826, 830 (Pa.Super. 1996); Commonwealth v.
Vasquez, 703 A.2d 25, 32 (Pa.Super. 1997)
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