Commonwealth v. Cortez

Two police officers on routine patrol in the early hours of an empty, snowy February morning passed an alley behind residences in North Philadelphia. As the officers were passing they heard dogs barking as two men emerged from the alley. The officers stopped the men and asked if they lived on the alleyway. The men acknowledged that they did not and were unable to produce identification. Prior to further inquiry the officers “patted down” the appellant here, and found in an outer coat pocket the ubiquitous gun. Arrested and charged with possession of a firearm, appellant was tried and convicted. In his appeal here, he contends, as he did unsuccessfully below, that the stop and frisk by the police officers was unsupported by a reasonable suspicion. While we would not yield our right of passage on the public streets to the whim of every barking dog, there are circumstances that may for the protection of all require some small rites of such passage.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court laid down certain limited occasions when one’s freedom to go where he will upon the public streets, may justify the small, at least to the innocent, inconvenience of a police inquiry.

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

Id. at 30-31, 88 S.Ct. at 1884-85.

Dogs are vigilant of the small parcels of the world they call their own. They bark at mice and men, feel tremors in the depths of the earth and seem to hear the shift of cobwebs. Their bark is not always, however, an alarm. Those they guard come to know the meanings of their bark; sift the bark at the stray cat, the home coming neighbor, and the echo of distant change.

In the dark of a snowy February morning, however, their bark, herald of two men emerging from an alley, is not without its reasonable suspicions. Those charged with everyone’s protection cannot be faulted if they heed that bark and check its obvious cause. To do less under those circumstances is to unreasonably discount one of the most common experiences of men with dogs: dogs bark at strangers. Whether persons in an alley, past the midnight, are indeed strangers, harmless passersby, lost, ill, or bent upon more sinister errands, is so palpably a reasonable question, that not to seek its answer would be a dereliction of common experience, and for police officers a dereliction of their duty.

When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975). Cf Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985); Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (regarding the proper standard of review in a Commonwealth appeal.)

At the suppression hearing one of the arresting officers testified that he suspected a burglary had occurred or was going to occur in that alley, and he testified that he felt the need to protect himself. Furthermore, he articulated the reasons for his suspicions: the time of night, the weather, the empty streets, the barking dogs, the inability of appellant to produce identification. The suppression hearing judge found these facts sufficient to justify the stop, and we detect no error in this determination.

In Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969) this Court held:

[E]ven if probable cause to arrest is absent, [a] police officer may still legitimately seize a person ... and conduct a limited search of the individual’s outer clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others, if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous. (Emphasis in original.)

Id., 434 Pa. at 158-159, 253 A.2d at 279. The acts of the police officers here were certainly consistent with these guidelines. We cannot demand of our police that they determine with one hundred per cent certainty that criminal activity is afoot or that a person is armed before they take protective steps. Terry v. Ohio, supra, does not require this and neither do prior decisions of this Court.

The order of the Superior Court is affirmed.

HUTCHINSON, J., joins the Majority opinion and files a separate concurring opinion.

FLAHERTY, J., files a dissenting opinion.

ZAPPALA, J., files a dissenting opinion.

. Appellant was convicted in Philadelphia Municipal Court of carrying an unlicensed firearm upon the streets of Philadelphia, in violation of Sections 6106 and 6108 of the Pennsylvania Uniform Firearms Act, Act of December 6, 1972, P.L. 1482, No. 334, § 1 et seq., 18 Pa.C.S. §§ 6106 and 6108. The Court of Common Pleas of Philadelphia denied his petition for certiorari and the Superior Court affirmed that denial. Commonwealth v. Cortez, 312 Pa.Super. 610, 460 A.2d 841 (1983).