Carrying a Concealed Handgun is not Sufficient Grounds to Stop and Search a Person in Pennsylvannia

At about 2:30 in the morning of 28 June, 2014, Michael Hicks was at a convenience store in Allentown, Pennsylvania. Hicks had a valid concealed carry permit, and had a handgun in an outside the waistband holster, concealed by his shirt.

Open carry is generally legal in Pennsylvania, but it is not legal to open carry in a vehicle. This limits the practicality of open carry on a regular basis.



Video surveillance of the scene showed Hicks adjusting his shirt, briefly allowing the handgun to be seen before approaching the convenience store. Hicks goes about his business, but minutes later is stopped by police. The Supreme Court of Pennsylvania watched the surveillance video and described what happened:

Hicks arrives at the Pace Mart at 2:31 a.m.and parks his vehicle at a gas pump. A second, unidentified individual already was parked at an adjacent gas pump. The individual clearly recognizes Hicks as an acquaintance, and approaches Hicks’ vehicle to greet him. Hicks exits his vehicle, and his firearm becomes visible, albeit barely. Hicks either is holstering the firearm or adjusting his garments around it when the second individual reaches Hicks’ driver’s side door, which is still open.The individual greets Hicks, and the two men shake hands with a brief, one-armed embrace.Hicks does not appear to gesture or point to the firearm, and he does not remove it from his waistband at any point.Hicks begins to walk toward the convenience store, continuing to adjust the position of the handgun, which becomes more clearly visible for a moment. Thereafter, the handgun is holstered outside Hicks’ waistband and covered by his shirt, but its outline remains visible. Hicks enters the store, exits a short time later, then returns to the gas pump, where he begins to fuel his vehicle. Hicks speaks briefly to a third, unidentified individual while he pumps gas. Hicks then reenters his vehicle and begins to pull away from the gas pump. Moments later, numerous marked police vehicles intercept Hicks’ vehicle with their lights flashing.

Even viewing all of the evidence in the light most favorable to the Commonwealth, there exists no basis for a finding that Hicks was engaged in any manner of criminal conduct.There was no indication or apparent threat of violence, and no information suggesting that Hicks engaged in any type of confrontation with another individual, physical, verbal, or otherwise. Neither the camera operator’s report nor the police radio dispatch suggest anything of the sort. Indeed, “[t]he video from the camera clearly shows the firearm concealed in [Hicks’] waistband and that, despite the hour, there are a number of individuals at this location.” Brief for Commonwealth at 16. However, significantly, no individual expresses any visible indication of alarm at Hicks’ presence, his possession of his firearm, or the manner in which he carried it. Rather, the video depicts patrons of a gas station going about their business, at least two of whom engage in seemingly friendly interactions with Hicks.

The Pennsylvania Supreme Court found that Hicks Fourth Amendment rights had been violated, and there was no legitimate reason for the police to stop him that early morning in June.

Michael Hicks was deprived of the protections of the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution, and the evidence derivative of his seizure should have been suppressed.

The Pennsylvania Supreme Court opinion was decided on 31 May, 2019. The State of Pennsylvania applied to the U.S. Supreme Court to appeal the decision on 27 September, 2019.  The United States Supreme Court formally declined to hear the case. The Court declines to hear cases by declining a writ of certiorari.

The United States Supreme Court denied certiorari on 9 December, 2019.

19-426 PENNSYLVANIA V. HICKS, MICHAEL J. 

The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.

For several decades, there has been an assumption in law enforcement circles, backed up by court decisions, that merely the suspicion of a person carrying a concealed weapon was sufficient to allow for a "stop and frisk" of that person.

Law enforcement agencies generally preferred to have that power. I was taught, decades ago, somewhat informally, to always stop and search a suspect if I thought they might have a concealed weapon. I was told, by the officer who was teaching me, that "he had never heard of a judge who threw out the evidence if a weapon was found".

With the success of the concealed carry movement in partially restoring Second Amendment rights, we are seeing a reversal of that policy. The reason is simple: concealed carry is becoming common and accepted.

In this case, Hicks was and is a black man. Skin color was not a part of the legal case.  It is part of the social construct. This case shows that black people have the same legal rights as others. More and more black people are exercising their Second Amendment rights. The exercise of Second Amendment rights is a key indicator of equal treatment under the law.

One of the findings of the infamous Dred Scott case was that black people could not be considered citizens, because if they were, they would be allowed to keep and carry weapons wherever they went. This case shows black people in Pennsylvania have reached a close approximation of the ability to keep and carry arms wherever they go.

When the Supreme Court refuses to grant certiorari in a case, it does not mean the Supreme Court necessarily agrees with the outcome of the case in the lower court. It means the case will only apply in the jurisdiction of the lower court.  It is an indication the Court does not place a high priority on reversing the decision of the lower court.

In Pennsylvania, police no longer have the legal ability to stop people and search them, simply because they have been noticed to be carrying a concealed weapon.

©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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