In response to an anonymous radio call, Philadelphia police visited the area of the 2000 block of Croskey Street. The call indicated that five to seven men were congregated along the street playing with a gun. Upon police arrival at the scene, officers witnessed the group disperse, with two members crossing the street to the other side and one male (Newsome) attempting to walk southbound down the street. When an officer approached Newsome and asked him to “come here” , Newsome refused and continued walking. Shortly thereafter, the officer began to radio for backup when he witnessed Newsome pull a “gun-like” object from his waistband and place it in a flower pot. Later, officers recovered the gun from the flower pot. Newsome was arrested and charged with unlawful possession of a firearm, firearms not to be carried without a license, and carrying a firearm on public property or streets in Philadelphia, Pennsylvania.
The officer later indicated that he had initially approached Newsome primarily due to his belief that he was in violation of Philadelphia’s 10:30 PM curfew. Prior to the recovery of the weapon, the Officer testified that he had not witnessed Newsome engage in any suspicious movements or any bulges/weapons on his person.
Newsome filed a pre-trial motion to suppress the firearm. The motion stated that officers lacked reasonable suspicion to stop or question him and , consequently, their encounter amounted to an unlawful search and seizure. The Commonwealth appealed after the trial court granted the motion and suppressed the firearm.
The Superior Court found that the officer’s initial interaction with Newsome would be categorized as a mere encounter. Only after witnessing Newsome attempt to dispose of the gun did the mere encounter escalate into a lawful investigative detention. The Superior Court found that the detention was lawful due to Newsome’s failure to respond to the officer’s requests “to come here” and his attempts to flee the area.
The Court’s opinion cited the necessity of police investigating possible unlawful and unsafe use of a firearm in a high traffic and high crime area. The Court asserted that the officer’s request of Newsome to “come here” did not constitute an unlawful detention because it did not immediately impair Newsome’s ability to move about freely. Further, the Court invoked the public safety component of the stop as an explanation or basis for the legality of the detention.
The actual standard, that appears to fly in the face of the Court’s conclusion, is the reasonable person standard. Under the Fourth Amendment of the United States Constitution, individuals have a right to be free from illegal searches and seizures. The long-accepted reasonable person standard regarding unlawful detentions rests on the question: would a reasonable person believe they were free to leave without fear of arrest? The Court should, on a case-by-case basis, determine what a reasonable person would believe in that circumstance. If an individual would not believe they are free to leave without fear of arrest, then an unlawful detention has occurred. Essentially, if a reasonable person would believe that their failure to cooperate could subject them to criminal charges, arrest or other undesirable consequences. Key factors used to determine if an unlawful detention has occurred include: if the officer insinuated the detention was required, if the officer employed force of any type, if physical detainment occurred, if there was probable cause for the initial detainment and the length of the detainment.
Here, as evidenced by Newsome’s attempt to leave the area and the officer’s attempt to prevent him from doing so, we believe that a reasonable person in Newsome’s position would not have believed he was permitted to leave without fear of arrest. Further evidence that a reasonable person would not have believed he was free to leave is the length of the encounter and the aggressive and intimidating nature of the officer’s dialogue, questions and actions throughout the stop. Although the opinion articulated the reasonable person standard, we don’t see how you can reconcile the result in this case with the reasonable person standard. Does this case signal an end to it? Or will the Pennsylvania Supreme Court change the result?
Police officers may engage in consensual encounters, meaning that they are permitted to confront individuals and ask them questions at anytime. Officers may engage in a “Terry stop” meaning that officers who have reasonable suspicion that a crime has occurred based on clearly articulated facts may detain individuals for short periods of time. However, if the encounter arises to a full detention by lasting for an unreasonable amount of time or if acts related to a traditional arrest (such as handcuffing) occur, it may be considered an unlawful detention. In the present case, the Officer’s interest in maintaining public safety and an anonymous and uncorroborated tip does not amount to a reasonable basis that Newsome was involved in a crime at the time that the officer told him to “come here.” Therefore, Newsome’s encounter with the Officer should not have been categorized as a consensual encounter or a Terry stop.
Thus, we believe the Court should have assessed if a reasonable person would have believed he was free to leave after being commanded to “come here” by a uniformed police officer. That the defendant ignored the officer is of no moment if we are truly following a reasonable person standard. If the Court had truly applied this objective test we don’t see how they could possibly have reached the result that they did. So the question now becomes – is the reasonable person test dead, will the Supreme Court reinstate it, or have we misinterpreted the facts of this case? Please share your thoughts below.