J-A05005-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DERRICK HARPER,

Appellee No. 3137 EDA 2014

Appeal from the Order Entered October 6, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003051-2014

and CP-51-CR-0003116-2014

BEFORE: OLSON AND OTT, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED MAY 04, 2016

The Commonwealth appeals as of right, under Pennsylvania Rule of 

Appellate Procedure 311(d), from an interlocutory order of court entered on 

October 6, 2014, granting the motion to suppress physical evidence that was 

filed by Derrick Harper (hereinafter “Harper”). We vacate the trial court’s 

order and remand.

On September 26, 2014, the trial court held a hearing on Harper’s 

pre-trial motion to suppress all physical evidence. See N.T. Suppression 

Hearing, 9/26/14, at 4.1 The trial court has provided us with an able and 

____________________________________________

1 The certified record does not contain Harper’s motion to suppress. 

However, during the suppression hearing, Harper’s counsel declared that the 

evidence against him must be suppressed because: Harper was subjected 

to an illegal investigatory detention that lacked reasonable suspicion; the 

initial search of the vehicle was illegal; the four corners of the search 

(Footnote Continued Next Page)
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well-written summary of the evidence that was presented during the 

suppression hearing. As the trial court explained:

[Philadelphia Police] Officer John Ellis [was the sole witness 

to testify at the suppression hearing. As Officer Ellis 

testified,] . . . on December 30, 2013[,] at approximately 

3:29 [p.m.], [Officer Ellis] . . . , a then [ten-year] veteran 

of the police force and his partner, [P]olice [O]fficer Thomas 

Rosinski . . . , responded to a radio call about a shooting at 

2148 Nedro [Avenue], [in Philadelphia]. At approximately 

4:00 [p.m.], [the officers] arrived at Albert Einstein Hospital 

. . . , where the shooting victim was being treated[.2]

Officer Ellis testified that upon arriving at the hospital, a 

security guard, Lieutenant Johnson, informed him that 

[“there were three males that just left the [emergency 

room],” that] one of [the] three males [had a gun, and that 

the three males were in a blue Mercury automobile that was 

in the parking lot.] Officer Ellis at the preliminary hearing 

could not recall whether, at the time the security guard told 

him about the gun, he was advised that this gun 

information actually came from a “patron inside the 

hospital[,]” but he later testified that he did not know how 

[Lieutenant] Johnson got the information. Further, Officer 

Ellis claimed he never asked Lieutenant Johnson for the 

basis of his knowledge about the gun or men.

[Harper] was not specifically identified as the person 

carrying a gun by [Lieutenant] Johnson or any civilian. 

Moreover, Officer Ellis did not receive any further 

(Footnote Continued) _______________________

warrant did “not contain the requisite probable cause for a search of . . . 

[the] automobile;” and, the search warrant contained material 

misstatements. N.T. Suppression Hearing, 9/26/14, at 4-8. 

2 The victim was shot in the head and, after he was taken to Albert Einstein 

Medical Center, the victim was pronounced dead at 4:11 p.m. Application

for Search Warrant and Affidavit, 1/2/14, at 2. 
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information regarding the men or a gun from the security 

officer or any civilian witnesses.

[Officer] Ellis, [Officer Rosinski], Lieutenant Johnson[,] and 

other hospital security staff[] then walked out [into the 

parking lot. According to Officer Ellis, he scanned the 

parking lot and saw a blue Mercury automobile with three 

people inside. Officer Ellis testified that he] approached the 

parked blue car, with his weapon drawn, and the person 

sitting in the front passenger seat, later identified as 

[Harper], immediately exited the vehicle[] and walked 

toward [Officer] Ellis and the others. [As Officer Ellis 

testified, he did not say anything to Harper at this time. 

Rather, Harper was the first to speak. Officer Ellis testified: 

“[after Harper exited the vehicle, [Harper] immediately 

walked over towards me because now at this time the gap 

is closing between me and the car and me and Mr. Harper. 

He gets out and he starts talking to me about – he just 

starts spilling about his – that’s my brother in there – along 

those lines. . . . I mean, he was very frantic.] . . . [Harper] 

was “frantic” . . . because he was the brother of the 

shooting victim and wanted to know what was going on 

[with his brother in the hospital]. . .]. A short time later, 

the other car occupants exited the vehicle. . . .

[Officer Ellis] did not observe any indicia that any of the 

men had a weapon. [Officer] Ellis did not observe any 

criminal activity by [Harper] or the other two men at this 

time. [Officer] Ellis did not, at any time, ask Lieutenant 

Johnson which of the three men allegedly carried the gun 

that precipitated the approach. Officer Ellis first frisked 

[Harper] and then the driver, and either [Officer Ellis] or his 

partner also frisked the rear passenger, and they did not 

find a gun or holster on any of them. . . .

At the time of the frisks, Lieutenant Johnson was present 

with [Officer] Ellis, albeit slightly behind him. No one came 

forward to identify which man allegedly possessed the 

firearm. There was no testimony that[,] at any time prior 

to these frisks[,] [] Officer Ellis ask[ed] Lieutenant Johnson 

which of the three men was the one [that] had been 

carrying a gun.
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The driver provided his license upon [Officer Ellis’] request. 

The three men complied with [Officer Ellis’] requests.

After finding no gun on any of the men, [Officer] Ellis 

continued to request information from one or more of them 

beginning with the driver’s license and registration. He 

obtained the licenses of the [] men after asking for them as 

he continued investigating the vehicle. [Officer] Ellis 

separately said that he was detaining the three men 

because he was investigating them about the homicide. 

[Officer] Ellis testified that he realized that [Harper] had 

something to do with the homicide he was investigating. . . 

.

Instead of placing the men in his police car because he 

apparently found it inconvenient to retrieve his police car 

from a neighboring car lot, [Officer] Ellis decided to put 

them back in the vehicle. [Officer] Ellis intended for the 

three men to return to the car in a secure location where “I 

could have them sitting down and they weren’t standing up 

and able to run or creating any kind of problem” during 

what he termed a “vehicle investigation.” He wanted to 

make sure the car [was not] stolen.

However, before permitting them to re-enter the vehicle, 

[Officer Ellis] opened the front passenger car door to 

conduct a search. . . . 

Upon opening the front passenger door and bending down, 

[Officer Ellis] testified that he could see a gun underneath 

the front passenger seat with no mention of the gun being 

in plain view. He then placed the men in handcuffs, placing 

[Harper] under arrest and detaining the other two men, and 

called for a search warrant. . . . 

The search warrant[,] prepared by [Detective John Bartol,] 

stated [that] “police performed a cursory check of the 

vehicle before allowing the males back in the vehicle[]” and 

“observed a black semi[-]automatic handgun from under 

the front passenger seat.” The warrant did not mention 

that Officer Ellis actually opened the door and peered 

underneath the front passenger seat before he could see 

the handgun.
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Trial Court Opinion, 3/23/15, at 2-5 (internal citations omitted).

During the suppression hearing, both the Commonwealth and Harper 

introduced the Application for Search Warrant and Affidavit of Probable 

Cause into evidence. See, e.g., N.T. Suppression Hearing, 9/26/14, at 75 

and 76. The application declared that the blue Mercury Marquis automobile 

was owned by an individual named Malcolm Guillaume Garland. Application 

for Search Warrant and Affidavit, 1/2/14, at 1.

Following the suppression hearing, the trial court took the matter 

under advisement and, on October 6, 2014, the trial court entered an order 

granting Harper’s motion to suppress all evidence. During the October 6, 

2014 proceeding, the trial court explained its reasoning in open court:

I believe that the tip was an anonymous tip. There was not 

enough further corroboration of it, no clothes, et cetera. He 

did point to the people in the car, but there were four [sic] 

of them. I think the officer was – if he had said which guy, 

I think he would’ve been in a better position. Even with 

that, no description of clothing, et cetera. And we don’t 

know who was carrying the gun. So if he had pointed that 

out, it may’ve been a little bit better, but it wasn’t.

There was no probable cause for any of the searches, not 

even reasonable suspicion for the pat down as far as I’m 

concerned. I think the whole thing was a pretext. I think 

the officer wanted into that car, and he did all he could to 

get in and finally did. 

So with that tip being insufficient, everything else falls. The 

motion is granted as to all evidence.

N.T. Hearing, 10/6/14, at 4-5.
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The trial court also issued an opinion where it more fully explained its 

factual findings and legal conclusions.3 Of note, the trial court found as a 

fact that:4 

____________________________________________

3

In the trial court’s opinion, when analyzing Harper’s expectation of privacy 

in the vehicle, the trial court declared: “we do not find the testimony 

presented by Officer Ellis credible describing his actions and statements in 

the hospital parking lot. The Commonwealth fell far short of showing 

[Harper] had no reasonable expectation of privacy and it failed to meet its 

burden of proof that the Terry [v. Ohio, 392 U.S. 1 (1968)] search of the 

vehicle was legal.” Trial Court Opinion, 3/23/15, at 7. While the trial court 

broadly declared that it did “not find the testimony presented by Officer Ellis 

credible describing his actions and statements in the hospital parking lot,” 

Officer Ellis was the only witness to testify during the suppression hearing 

and the trial court expressly concluded that large portions of Officer Ellis’ 

testimony “describing his actions and statements in the hospital parking lot” 

were, in fact, true. See, e.g., Trial Court Opinion, 3/23/15, at 1-10. Thus, 

and contrary to the trial court’s broad and vague statement, the trial court 

indeed credited the majority of Officer Ellis’ testimony. 

We read the trial court’s broad and vague statement that it did “not find the 

testimony presented by Officer Ellis credible describing his actions and 

statements in the hospital parking lot,” to mean that, at times, it found that 

Officer Ellis was not credible when the officer testified to “his actions and 

statements in the hospital parking lot.” The specific instances where the 

trial court found Officer Ellis not credible were noted by the trial court and 

are recounted in the body of this memorandum, supra. Nevertheless, at 

this time, we note that the trial court found Officer Ellis not credible in the 

following instances: 1) contrary to Officer Ellis’ suppression hearing 

testimony, when Lieutenant Johnson told Officer Ellis “there were three 

males that just left the [emergency room]” and one of the three males “had 

a gun,” Officer Ellis knew that Lieutenant Johnson’s information did not come 

from personal observation, but rather came from an anonymous tip; 2) 

contrary to Officer Ellis’ suppression hearing testimony, when Officer Ellis 

decided to place Harper and the other two individuals in the blue Mercury 

Marquis to await his investigation, Officer Ellis did so as “a pretext for 

searching” the vehicle; and, 3) contrary to the search warrant application, 

the firearm was not in plain view in the automobile, but was rather hidden 

underneath the front passenger seat of the car. Id. at 7, 8, and 9-10.
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 when Lieutenant Johnson told Officer Ellis “there were three males that 

just left the [emergency room]” and one of the three males “had a 

gun,” Officer Ellis knew that Lieutenant Johnson’s information did not 

come from personal observation, but rather came from an anonymous 

tip; Trial Court Opinion, 3/23/15, at 8;5

(Footnote Continued) _______________________

4 Since the trial court granted Harper’s motion to suppress, our standard of 

review demands that we “we [] consider only the evidence of the defense 

and so much of the evidence for the Commonwealth as remains 

uncontradicted when read in the context of the record as a whole.” 

Commonwealth v. Mistler, 912 A.2d 1265, 1268-1269 (Pa. 2006). 

Viewing the record in this light, the evidence supports all of the trial court’s 

factual conclusions that we recount in the body of this memorandum. 

However, some of the trial court’s factual conclusions required that the court 

render a decision upon conflicting and/or ambiguous evidence. In the 

following summary, we will note where the trial court was required to arrive 

at a factual conclusion based upon conflicting and/or ambiguous evidence.

5 Viewing the record in the requisite light, the evidence supports the trial 

court’s factual conclusion that Officer Ellis knew that Lieutenant Johnson’s 

information did not come from personal observation, but rather came from 

an anonymous tip. At the outset, it is true Officer Ellis testified at the 

suppression hearing that, when he was first approached by Lieutenant 

Johnson, Lieutenant Johnson did not tell Officer Ellis how Lieutenant Johnson 

learned there was a “man with a gun.” See N.T. Suppression Hearing, 

9/26/14, at 36. However, during cross-examination, defense counsel 

confronted Officer Ellis with his prior testimony during Harper’s preliminary 

hearing. Officer Ellis testified: 

[Q:] We talked a little bit earlier on cross-examination that 

– do you remember, going back to [the preliminary hearing 

where you testified] “[i]n fact, your information from the 

security guard was that it wasn’t him that observed the 

gun; it was a patron inside the hospital,” correct[?]

Do you remember being asked about that question that you 

were asked at the preliminary hearing?

(Footnote Continued Next Page)
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 when Officer Ellis approached the parked, blue Mercury Marquis, 

Officer Ellis had “his weapon drawn;” id. at 3;6

(Footnote Continued) _______________________

[A:] Yes, and I responded yes. I responded to your 

question.

I said, “Yes, that’s what I said.”

I said, “Yeah, however, I got the information, I don’t know.”

It says, “However I got the information; I don’t know 

exactly – I don’t exactly recall how the security guard told 

me because it happened so fast.”

I don’t know how he said it. All I know is that he said it to 

me. I can’t sit here and tell you the exact words that he 

said to me.

Id. at 68.

Although Officer Ellis’ above testimony is fairly ambiguous, the trial court 

resolved the ambiguity and interpreted this testimony to mean that, when 

Lieutenant Johnson approached Officer Ellis and told him that an individual 

in a blue Mercury automobile had a gun, Officer Ellis was aware “that the 

information source about [the] gun was an anonymous tipster.” Trial Court 

Opinion, 3/23/15, at 8. Given the ambiguity in Officer Ellis’ testimony, the 

trial court’s factual finding is supported by the record and binding upon this 

Court.

6 Viewing the record in the requisite light, the evidence supports the trial 

court’s factual conclusion that, when Officer Ellis approached the parked, 

blue Mercury Marquis, Officer Ellis had “his weapon drawn.” Specifically, 

during Officer Ellis’ suppression hearing testimony, the following exchange 

took place:

Q: And when the other two [men] exited the [blue Mercury 

Marquis], where did they go?

(Footnote Continued Next Page)
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 when Harper initially approached Officer Ellis and said “that’s my 

brother in there,” Officer Ellis believed Harper’s statement and, thus, 

believed “that [Harper] was the brother of a gunshot victim who was 

frantic/agitated and understandably concerned for his brother’s life;” 

id. at 9; 

 Harper “was not specifically identified as the person carrying a gun by 

[Lieutenant] Johnson or any [other] civilian;” id. at 3; 

(Footnote Continued) _______________________

A: They walked over towards us a little slower than Mr. 

Harper did that day.

Q: And at that point, how many officers were on scene, 

when you had three males walking towards you?

A: Just my partner and I and the security guards were 

behind us.

Q: At that point, did you have your gun drawn?

A: No, I did.

N.T. Suppression Hearing, 9/26/14, at 41.

Officer Ellis’ answer “[n]o, I did,” to the question “did you have your gun 

drawn,” is ambiguous on paper. However, the trial court heard Officer Ellis’ 

live testimony and interpreted Officer Ellis’ testimony to mean that he did, in 

fact, have his gun drawn when he initially approached Harper. Trial Court 

Opinion, 3/23/15, at 3. This interpretation is supported by the record and 

binding on this Court, even though, during cross-examination, Officer Ellis 

answered “Yes” to the following question posed by Harper’s counsel: “You’re 

in full uniform that also includes – you didn’t have your firearm drawn, but 

both you and your partner have a firearm, correct?” N.T. Suppression 

Hearing, 9/26/14, at 54. 
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 prior to the frisk of Harper and the two other individuals, Officer Ellis 

“did not observe any indicia that any of the men had a weapon” and 

“did not observe any criminal activity by [Harper] or the other two 

men;” id.;

 the frisk of Harper and the two other individuals did not produce a 

weapon or a holster; id.;

 Harper and the other two individuals were compliant with Officer Ellis 

throughout the entire interaction; id. at 9;

 following the frisk, Officer Ellis continued to detain Harper and the 

other individuals “because he was investigating them about the 

homicide . . . [and because] he wanted to make sure the vehicle [in 

which the men had exited] wasn’t stolen;” id. at 4;

 Officer Ellis had no reason to suspect that the car was stolen; id. at 4, 

9, and 

 when Officer Ellis decided to place Harper and the other two 

individuals in the blue Mercury Marquis to await his investigation, 

Officer Ellis did so as “a pretext for searching” the vehicle; id. at 4.7

____________________________________________

7 Viewing the record in the requisite light, the evidence supports the trial 

court’s determination that, when Officer Ellis decided to place Harper and the 

other two individuals in the blue Mercury Marquis automobile, he did so as “a 

pretext for searching” the vehicle. Trial Court Opinion, 3/23/15, at 4. As 

the trial court explained, Officer Ellis “could have placed them in his squad 

car while he waited to obtain a search warrant.” Id. Therefore, since the 

trial court’s factual finding is supported by the record, it is binding upon this 

Court.
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At this point we note that, notwithstanding the trial court’s factual 

finding that Officer Ellis had “his weapon drawn” when he approached the 

blue Mercury Marquis automobile, there is no evidence in this case that, 

when the officer approached the automobile, the officer had his weapon 

pointed in the direction of either Harper or the automobile. See N.T. 

Suppression Hearing, 9/26/14, at 1-80. Further, with respect to the initial 

encounter between Officer Ellis and Harper, we note that the uncontradicted 

evidence in this case demonstrates: that Harper initiated the contact with 

the officers while Officer Ellis remained a considerable, but unspecified, 

distance away from the blue Mercury; that Harper spoke to the officers 

before he was spoken to; and, that, before Officer Ellis said anything, Harper 

identified himself as the brother of the shooting victim who was inside the 

hospital. Officer Ellis testified:

Q: And when you were walking towards the parking lot, did 

you observe anything?

A: I did; Mr. Harper.

Q: Where was he when you first saw him?

A: He was in the front passenger’s seat of the blue Mercury 

in the parking lot.

Q: Was he alone in that vehicle or were there other people?

A: No, there was two others. There was a driver, and there 

was a passenger directly behind the front passenger’s seat 

that Mr. Harper was in.

. . .
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Q: And when you said you saw [Harper] in the front 

passenger’s seat, what did he do next?

A: I looked in the direction of the sedan, the Mercury, and 

immediately upon me walking over towards that direction 

that’s when Mr. Harper exited the vehicle.

Q: Were you yelling at Mr. Harper, “Get out of the vehicle; 

get out of the vehicle”?

A: No. I was far away. I couldn’t have.

. . .

Q: As you were walking towards the vehicle, were you 

yelling anything at all?

A: Nothing at all.

Q: And you said that Mr. Harper exited the vehicle; is that 

correct?

A: Yes.

Q: When he exited the vehicle, what did he do?

A: He immediately walked over towards me because now at 

this time the gap is closing between me and the car and me 

and Mr. Harper. He gets out and he starts just talking to 

me about – he just starts spilling about his – that’s my 

brother in there – along those lines. I can’t sit here and tell 

you exactly what he said, but it was along the lines of that’s 

my brother in there and what’s going on.

Q: And what was his demeanor like when he approached 

you and was saying that?

A: I mean, he was very frantic. You know, he wants to 

know what’s going on. His demeanor, like, initially when I 

started approaching, walking to the car was – he was the 

first one out of the car quickly. He walked right over to me 

and just started, like, you know, asking me questions about 

– you know, that’s my brother; what’s going on. . . .
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Q: So you said he got out of the car first. The other two 

males, where did they go?

A: They exited the car. [Harper] was the first one out and 

up and towards me. And then the other two exited.

Q: And when the other two exited the car, where did they 

go?

A: They walked over towards us a little slower than Mr. 

Harper did that day.

. . .

Q: Once the three males were walking towards you, what 

did you do next?

A: Well, the first thing I did was I had contact with Mr. 

Harper and stopped him, slowed him down. 

I said, “Okay, stop.”

Right then and there in the parking lot, I said, “Hey man, 

what’s going on; I don’t know what’s going on.”

And I performed a pat down immediately on Mr. Harper. 

N.T. Suppression Hearing, 9/26/14, at 38-42.

With respect to the trial court’s legal conclusions, the trial court held 

that: Officer Ellis did not have reasonable suspicion to perform the initial 

frisk of Harper; Officer Ellis did not have reasonable suspicion to detain 

Harper following the initial frisk; and, Harper had a reasonable expectation 

of privacy in the blue Mercury Marquis, which Officer Ellis violated when he 

searched the vehicle without a warrant. Id. at 1-10.

Following the trial court’s suppression order, the Commonwealth filed 

an interlocutory appeal as of right, pursuant to Pennsylvania Rule of 
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Appellate Procedure 311(d).8 On appeal, the Commonwealth raises two 

claims:

[1.] Did the [trial] court commit an error of law when it 

concluded that [Harper] had a reasonable expectation of 

privacy in a car, registered to someone else, in which he 

was a passenger?

[2.] In any event, did the [trial] court err when it concluded 

that police lacked reasonable suspicion justifying a 

protective search of the car where the vehicle was parked at 

a hospital at which a shooting victim had just arrived, a 

hospital patron told security that one of the men in the car 

had a gun, and [Harper] exited the car and approached

police in a frantic manner?

Commonwealth’s Brief at 3.

“Once a motion to suppress evidence has been filed, it is the 

Commonwealth’s burden to prove, by a preponderance of the evidence, that 

the challenged evidence was not obtained in violation of the defendant’s 

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 

Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). If the defendant 

prevails in the underlying proceeding, we review the suppression court’s 

order under the following standard and scope of review:

When reviewing an [o]rder granting a motion to suppress 

we are required to determine whether the record supports 

the suppression court’s factual findings and whether the 

legal conclusions drawn by the suppression court from those 

____________________________________________

8 Within its notice of appeal, the Commonwealth properly certified that the 

trial court’s suppression order will terminate or substantially handicap the 

prosecution. Notice of Appeal, 11/5/14 at 1; see also Pa.R.A.P. 311(d).
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findings are accurate. In conducting our review, we may 

only examine the evidence introduced by [the defendant] 

along with any evidence introduced by the Commonwealth 

which remains uncontradicted. Our [standard] of review 

over the suppression court’s factual findings is limited in 

that if these findings are supported by the record we are 

bound by them.

Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008) (internal 

citations omitted). “It is within the suppression court’s sole province as 

factfinder to pass on the credibility of witnesses and the weight to be given 

their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. 

Super. 2006). Moreover, we note that our scope of review from a 

suppression ruling is limited to the evidentiary record that was created at 

the suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

The Commonwealth first claims that the trial court erred when it held 

that Harper had a reasonable expectation of privacy in the blue Mercury 

Marquis automobile, as the vehicle was registered to another individual and 

Harper produced no evidence that he had an expectation of privacy in the 

vehicle. Commonwealth’s Brief at 8. We agree with the Commonwealth. 

As this Court has explained:

Both Article 1, Section 8 of the Pennsylvania Constitution 

and the Fourth Amendment of the United States 

Constitution have been interpreted as protecting zones 

where an individual enjoys a reasonable expectation of 

privacy. Commonwealth v. Parker, 619 A.2d 735, 737 

(Pa. Super. 1993). While the Pennsylvania Constitution 

may be employed to guard individual privacy rights against 

unreasonable searches and seizures more zealously than 

the federal law, an individual’s expectation of privacy in the 

place searched must be established to invoke constitutional 

protection. Commonwealth v. Melilli, 555 A.2d 1254, 
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1258 (Pa. 1989). “[I]n order for a defendant accused of a 

possessory crime to prevail in a challenge to the search and 

seizure which provided the evidence used against him, he 

must, as a threshold matter, establish that he has a legally 

cognizable expectation of privacy in the premises which 

were searched.” Commonwealth v. Strickland, 707 A.2d 

531, 534 (Pa. Super. 1998), quoting Commonwealth v. 

Carlton, 701 A.2d 143, 145-146 (Pa. 1997).

Commonwealth v. Viall, 890 A.2d 419, 421-422 (Pa. Super. 2005) 

(parallel citations omitted). “An expectation of privacy will be found to exist 

when the individual exhibits an actual or subjective expectation of privacy 

and that expectation is one that society is prepared to recognize as 

reasonable.” Id. at 422.

During the suppression hearing, both Harper and the Commonwealth 

introduced the search warrant into evidence – and the search warrant 

expressly declared that the registered owner of the blue Mercury Marquis 

automobile was an individual named Malcolm Guillaume Garland. 

Application for Search Warrant and Affidavit, 1/2/14, at 1. Harper neither 

testified at the suppression hearing nor introduced any evidence to 

demonstrate that, contrary to the evidence of record, he: owned the 

vehicle, had permission to drive the vehicle, or otherwise had an expectation 

of privacy in the vehicle. See N.T. Suppression Hearing, 9/26/14, at 1-73. 

As this Court has continuously held, where the Commonwealth has 

come forward with evidence that the defendant was a passenger or a 

non-owner of a vehicle, and where the defendant does not establish that he 

owned the vehicle, had permission to drive the vehicle, or otherwise had an 
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expectation of privacy in the vehicle, the defendant simply cannot satisfy his 

burden of establishing that he had a protected privacy interest in the 

automobile. See Commonwealth v. Jones, 874 A.2d 108, 120 (Pa. Super. 

2005) (holding: where the defendant was the driver of a rental car, the 

defendant did not have an expectation of privacy in the car because the 

“return date [on the rental automobile] had expired, [the defendant] was 

not the named lessee, the named lessee was not in the automobile, and [the 

defendant] was not authorized to drive the automobile”); Commonwealth 

v. Burton, 973 A.2d 428, 436 (Pa. Super. 2009) (en banc) (holding that the 

defendant did not have an expectation of privacy in a vehicle, where he did 

not own the vehicle and where he “offered no evidence to explain his 

connection to the vehicle or his connection to the registered owner of the 

vehicle”); Commonwealth v. Cruz, 21 A.3d 1247, 1251-1252 (Pa. Super. 

2011) (holding that the defendant did not demonstrate that he had an 

expectation of privacy in the vehicle he was driving at the time of the valid 

stop because the defendant “presented no evidence that he owned the 

vehicle, that it was registered in his name, or that he was using it with the 

permission of the registered owner”). 

Thus, since Harper had the burden of “establish[ing] that he ha[d] a 

legally cognizable expectation of privacy in the” automobile – and since 

Harper did not satisfy this burden – we conclude that the trial court erred 

when it held that Officer Ellis violated Harper’s constitutional rights by 
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conducting the warrantless search of the blue Mercury Marquis automobile.9 

Viall, 890 A.2d at 421-422.

Nevertheless, the above conclusion is not dispositive of this appeal.10 

Certainly, even though Harper did not demonstrate that he possessed a 

reasonable expectation of privacy in the vehicle, Harper also sought to 

suppress the evidence because Officer Ellis did not have reasonable 

suspicion to seize his person. N.T. Suppression Hearing, 9/26/14, at 4-8; 

see also Brendlin v. California, 551 U.S. 249, 259 (2007), quoting 6 W. 

LaFave, SEARCH AND SEIZURE § 11.3(e) at 194, 195, and n.227 (4th ed. 2004 

and Supp 2007) (noting that, even though a passenger does not have an 

expectation of privacy in another person’s vehicle, “[i]f either the stopping of 

____________________________________________

9 Within the trial court’s opinion, the trial court declared that, since it “[did] 

not find the testimony presented by Officer Ellis credible describing his 

actions and statements in the hospital parking lot[,] . . . [t]he 

Commonwealth fell far short of showing [Harper] had no reasonable 

expectation of privacy and it failed to meet its burden that the Terry search 

of the vehicle was legal.” Trial Court Opinion, 3/23/15, at 7. The trial 

court’s statement is incorrect, given that both Harper and the 

Commonwealth introduced the search warrant into evidence and the search 

warrant declared that the registered owner of the blue Mercury Marquis 

automobile was an individual named Malcolm Guillaume Garland. 

Application for Search Warrant and Affidavit, 1/2/14, at 1. Therefore, and 

regardless of Officer Ellis’ testimony, the documentary evidence in this case 

demonstrated that Harper was not the registered owner of the vehicle. 

10 The Commonwealth claims that “[b]ecause [Harper] lacked a reasonable 

expectation of privacy in the Mercury, the suppression order should be 

reversed and there is no need to consider additional issues.” 

Commonwealth’s Brief at 14. The Commonwealth’s contention is incorrect. 

Brendlin v. California, 551 U.S. 249, 259 (2007).
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the car, the length of the passenger’s detention thereafter, or the 

passenger’s removal from it are unreasonable in a Fourth Amendment 

sense, then surely the passenger has standing to object to those 

constitutional violations and to have suppressed any evidence found in the 

car which is their fruit”). Further, when the trial court granted Harper’s 

suppression motion, it did so both because, in its view, Harper possessed an 

expectation of privacy in the vehicle and the Commonwealth did not 

establish that Officer Ellis had reasonable suspicion to subject Harper to an 

investigatory detention. Trial Court Opinion, 3/23/15, at 7-10. 

The Commonwealth now argues that the trial court erred when it 

determined that Officer Ellis lacked reasonable suspicion to seize Harper’s 

person. We agree.

As we explained, “[t]he Fourth Amendment to the [United States] 

Constitution and Article I, Section 8 of [the Pennsylvania] Constitution 

protect citizens from unreasonable searches and seizures. To safeguard this 

right, courts require police to articulate the basis for their interaction with 

citizens in [three] increasingly intrusive situations.” Commonwealth v. 

McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012). Our Supreme Court 

categorizes these three situations as follows:

The first category, a mere encounter or request for 

information, does not need to be supported by any level of 

suspicion, and does not carry any official compulsion to stop 

or respond. The second category, an investigative 

detention, derives from Terry v. Ohio and its progeny: 

such a detention is lawful if supported by reasonable 
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suspicion because, although it subjects a suspect to a stop 

and a period of detention, it does not involve such coercive 

conditions as to constitute the functional equivalent of an 

arrest. The final category, the arrest or custodial detention, 

must be supported by probable cause.

Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003).

With respect to an investigative detention, our Supreme Court has 

held: “[to determine] whether an investigative ‘stop’ occurred, [a court 

must] view[] all circumstances evidencing a show of authority or exercise of 

force, including the demeanor of the police officer, the manner of expression 

used by the officer in addressing the citizen, and the content of the 

interrogatories or statements. . . . [T]he pivotal inquiry is whether, 

considering all the facts and circumstances evidencing the exercise of force, 

a reasonable man would have thought he was being restrained.” 

Commonwealth v. Mendenhall, 715 A.2d 1117, 1119-1120 (Pa. 1998) 

(internal citations omitted).

“To have reasonable suspicion, police officers need not personally 

observe the illegal or suspicious conduct, but may rely upon the information 

of third parties, including ‘tips’ from citizens.” Commonwealth v. Lohr, 

715 A.2d 459, 461 (Pa. Super. 1998). With respect to these third-party 

“tips,” we have held:

Reasonable suspicion, like probable cause, is dependent 

upon both the content of information possessed by police 

and its degree of reliability. Both factors – quantity and 

quality – are considered in the “totality of the circumstances 

– the whole picture,” that must be taken into account when 

evaluating whether there is reasonable suspicion. Thus, if a 

tip has a relatively low degree of reliability, more 
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information will be required to establish the requisite 

quantum of suspicion than would be required if the tip were 

reliable.

When the underlying source of the officer’s information is an 

anonymous call, the tip should be treated with particular 

suspicion. However, a tip from an informer known to the 

police may carry enough indicia or reliability for the police 

to conduct an investigatory stop, even though the same tip 

from an anonymous informant would likely not have done 

so.

Indeed, identified citizens who report their observations of 

criminal activity to police are assumed to be trustworthy, in 

the absence of special circumstances, since a known 

informant places himself at risk of prosecution for filing a 

false claim if the tip is untrue, whereas an unknown 

informant faces no such risk. When an identified third party 

provides information to the police, we must examine the 

specificity and reliability of the information provided. The 

information supplied by the informant must be specific 

enough to support reasonable suspicion that criminal 

activity is occurring. To determine whether the information 

provided is sufficient, we assess the information under the 

totality of the circumstances. The informer’s reliability, 

veracity, and basis of knowledge are all relevant factors in 

this analysis.

Commonwealth v. Barber, 889 A.2d 587, 593-594 (Pa. Super. 2005) 

(internal quotations and citations omitted).

Finally, we note that, since reasonable suspicion depends upon the 

totality of the circumstances, the facts and circumstances giving rise to (or 

failing to give rise to) reasonable suspicion will vary depending upon the 

specific facts of the case. In the case at bar, the facts of this case reveal 

that a number of different factors are relevant to our reasonable suspicion 

analysis. These factors include: the source of the original tip (i.e. whether 
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the source of the tip was an anonymous or a known individual);11 whether 

the tip was predictive of the individual’s future behavior;12 the basis of the 

tipster’s knowledge;13 the specificity of the tip;14 the investigating officer’s 

training and experience;15 the physical proximity of the individual seized to 

the location given by the tipster;16 the temporal proximity from the time of 

____________________________________________

11 See Barber, 889 A.2d at 593-594 (“[w]hen the underlying source of the 

officer’s information is an anonymous call, the tip should be treated with 

particular suspicion. However, a tip from an informer known to the police 

may carry enough indicia or reliability for the police to conduct an 

investigatory stop, even though the same tip from an anonymous informant 

would likely not have done so).”

12 Commonwealth v. Zhahir, 751 A.2d 1153, 1157 (Pa. 2000) (“[w]here . 

. . the source of the information given to the officers is unknown, the range 

of details provided and the prediction of future behavior are particularly 

significant, as is corroboration by independent police work”).

13 Commonwealth v. Martin, 705 A.2d 887, 892 (Pa. Super. 1997) (“[i]n 

analyzing an anonymous tip, we must determine whether under the “totality 

of the circumstances” the informant's tip established the necessary 

reasonable suspicion that criminal activity was afoot. Critical factors to be 

considered are the informant's veracity, reliability and basis of knowledge”) 

(internal citations omitted).

14 See Zhahir, 751 A.2d at 1157.

15 Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (“[t]he 

determination of whether an officer had reasonable suspicion that criminality 

was afoot so as to justify an investigatory detention is an objective one, 

which must be considered in light of the totality of the circumstances. In 

assessing the totality of the circumstances, a court must give weight to the 

inferences that a police officer may draw through training and experience”) 

(internal quotations and citations omitted). 

16 Commonwealth v. Walls, 53 A.3d 889, 894 (Pa. Super. 2012) (holding 

that the police had reasonable suspicion to believe the defendant was 

(Footnote Continued Next Page)
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the incident to the time of the tipster’s report;17 the temporal proximity from 

the time of the receipt of the information to the time the officer came upon 

the individual seized;18 whether, before the seizure, the officer witnessed the 

individual act suspiciously or irregularly or whether the officer witnessed the 

individual act normally;19 the time and place of the stop;20 police 

(Footnote Continued) _______________________

involved in criminal activity because of a number of factors, including his 

“proximity to the location described in the flash, and [the defendant’s] 

matching the description of the suspect”).

17 Commonwealth v. Wilson, 662 A.2d 293, 297 (Pa. Super. 1993) (“[i]n 

those cases reviewed by [the Superior] Court, where investigatory stops 

have been validated, the police have acted on the information received from 

a confidential informant or anonymous tipster almost immediately after the 

receipt of the information leading one justifiably and reasonably to suspect 

that criminal activity was afoot”).

18 Id.

19 Commonwealth v. Kearney, 601 A.2d 346, 347-348 (Pa. Super. 1992) 

(holding that the “reasonable suspicion . . . standard is met if the police 

officer’s reasonable and articulable belief that criminal activity was afoot is 

linked with his observation of suspicious or irregular behavior on behalf of 

the particular defendant stopped”) (internal citations and quotations 

omitted).

20 In the Interest of S.D., 633 A.2d 172, 174 (Pa. Super. 1993) (holding 

that “[t]he time and place of the encounter in this case provided an 

independent basis for the officer to act on the informant’s tip,” where the 

“events took place [in] an area of high drug incidence . . . at 5:25 in the 

morning”).
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corroboration of the tip;21 and, police corroboration of any alleged criminal 

activity.22

We will analyze each of the above factors seriatim. 

In the case at bar, Lieutenant Johnson (a hospital security guard)

informed Officer Ellis that, through an anonymous tipster, Lieutenant 

Johnson learned that “there were three males that just left the [emergency 

room],” that one of the three males had a gun, and that the three males 

were in a blue Mercury automobile that was in the parking lot. N.T. 

Suppression Hearing, 9/26/14, at 36. There is no evidence that the 

anonymous tipster stayed at the scene after giving the tip to the security 

guard or that the anonymous tipster was ever identified; further, there is no 

evidence that Lieutenant Johnson, as a hospital security guard, was anything 

other than a private individual acting in a private capacity. 

Nevertheless, the Commonwealth claims that the anonymous tip in 

this case was more reliable because the tip was made in person, as opposed 

____________________________________________

21 Commonwealth v. Chase, 575 A.2d 574, 577 (Pa. Super. 1990) 

(holding that, even though the radio broadcast a “general description” of “a 

black man in a blue shirt,” the police had probable cause to arrest the 

defendant, in part, because the radio broadcast the individual’s location, and 

the police corroborated the fact that the defendant was in “the precise 

locality” described in the broadcast). 

22 Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010) (“[a]n 

anonymous tip, corroborated by independent police investigation, may 

exhibit sufficient indicia of reliability to supply reasonable suspicion for an 

investigatory stop”).
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to telephonically. Commonwealth’s Brief at 15. In support, the 

Commonwealth cites to our opinion in Commonwealth v. Williams, 980 

A.2d 667 (Pa. Super. 2009). There, an officer “had just received a radio call 

advising of a robbery in progress, observed [the defendant] in the 

immediate vicinity of the reported robbery attempting to avoid two female 

officers who were approaching him on foot, and encountered [an 

anonymous] witness who was pointing at [the defendant] yelling, ‘He has 

got a gun.’” Id. at 671. As we held in Williams, even though the witness 

who yelled “He has got a gun” was anonymous, the tip was more reliable 

than a typical, uncorroborated, anonymous telephone tip. We explained:

The situation here . . . is distinguishable [from an 

anonymous telephone call to the police] in that the tip was 

made in person, giving [the officer] an opportunity to 

observe the witness’ demeanor and assess his credibility in 

light of his past experience with investigating crimes. Such 

a tip must be given more weight than a mere anonymous 

phone call because a person who knowingly gives false 

information to any law enforcement officer with intent to 

implicate another may be held criminally liable [under 18 

Pa.C.S.A. § 4906].

Id. at 671-671 (internal quotations omitted).

The rule articulated in Williams does not apply to the case at bar. In 

this case, even though the anonymous tipster informed Lieutenant Johnson 

in person, Lieutenant Johnson was not a law enforcement officer and 

Lieutenant Johnson did not testify at the suppression hearing. Thus, since 

Lieutenant Johnson was not a law enforcement officer, the anonymous 

tipster did not risk prosecution under 18 Pa.C.S.A. § 4906 and, since 
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Lieutenant Johnson did not testify at the suppression hearing, there was no 

testimony or cross-examination regarding the lieutenant’s skill at 

“observ[ing] the [tipster’s] demeanor and assess[ing] his credibility in light 

of [the lieutenant’s] past experience with investigating crimes.” Williams, 

980 A.2d at 671-672. As such, the twin rationales that support the 

Williams rule are not found in the case at bar and we must conclude that 

the anonymous tip in this case is entitled to no greater weight than a typical, 

anonymous telephone tip to the police.

Thus, in this case, we must conclude that the source of the tip was a 

wholly anonymous person. Further, since the anonymous tip did not predict 

Harper’s future actions, we must conclude that, at the time Officer Ellis was 

informed of the anonymous tip, the tip “carrie[d] a low degree of reliability.” 

Commonwealth v. Fell, 901 A.2d 542, 545 (Pa. Super. 2006) (“[b]ecause 

an anonymous tip typically carries a low degree of reliability, more 

information is usually required before investigating officers develop the 

reasonable suspicion needed to support an investigatory stop of a suspect”). 

Regarding the source of the tipster’s knowledge, we note that the 

uncontradicted evidence in this case establishes that the tipster told 

Lieutenant Johnson that he personally witnessed “one of the three males,” in 

the hospital, with a gun. See N.T. Suppression Hearing, 9/26/14, at 68 

(“[Q:] [Officer Ellis, w]e talked a little bit earlier on cross-examination that –

do you remember, going back to [your preliminary hearing testimony,] ‘In 

fact, your information from the security guard was that it wasn’t him that 
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observed the gun; it was a patron inside the hospital – correct[?]’ . . . . [A:] 

Yes, and I responded yes”). It is true that, in this case, the tipster was 

anonymous and Officer Ellis’ testimony regarding the tip constituted double 

hearsay. However, as a general matter, we note that a tipster’s asserted 

“personal observation” typically imbues the tip with greater reliability than 

an instance where, for example, the tipster admits that he learned of the 

information through another person. See, e.g., Commonwealth v. 

Williams, 444 A.2d 1278, 1280 (Pa. Super. 1982) (distinguishing between 

an informant’s tip that is based upon “personal knowledge” and a tip that is 

based upon “common rumor or report”).

With respect to the specificity of the tip, the tip in this case was 

moderately specific, given that the tipster informed Lieutenant Johnson that 

“there were three males that just left the [emergency room],” that one of 

the three males had a gun, and that the three males were presently in a 

blue Mercury automobile that was in the parking lot. It is true that this tip 

does not describe the race, height, body type, or clothing of any of the three 

individuals, does not predict any future behavior of the three individuals, and 

does not specify the particular individual who possessed the weapon. 

Nevertheless, the uncontradicted evidence in this case demonstrates that 

Officer Ellis was able to look out onto the “smaller” emergency room parking 

lot and readily discover a blue Mercury Marquis automobile with three 

individuals inside. N.T. Suppression Hearing, 9/26/14, at 37-39 and 78.
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The next factor in our totality of the circumstances analysis is the 

investigating officer’s training and experience. At the time of the incident, 

Officer Ellis was a ten-year veteran of the Philadelphia Police force, had been

specially selected to be a member of the Narcotics Enforcement Team, and, 

for the prior six years, had served as a member of the special Narcotics 

Enforcement Team. Id. at 32-33. Therefore, the uncontradicted evidence in 

this case demonstrates that, at the time of the incident, Officer Ellis had 

extensive police training and experience.

Next, we examine the physical proximity of Harper to the location 

given by the tipster. Here, the tipster informed Lieutenant Johnson that the 

“male with a gun” was accompanied by two other males and that the three 

men were inside of a blue Mercury automobile that was in the hospital 

parking lot. Id. at 36. It is uncontradicted that, when Officer Ellis walked 

out to the hospital parking lot, Officer Ellis discovered Harper sitting in a 

blue Mercury automobile with two other men, and that the vehicle was 

parked in the hospital parking lot. Id. at 38-39. Therefore, in this case, 

Harper was in the precise location that the tipster declared. 

As to the temporal proximity from the time of the incident to the time 

of the tipster’s report and from the time of the tipster’s report until the time 

the officer came upon Harper, the uncontradicted evidence demonstrates 

that the temporal proximity between all of the relevant events in this case 

was close. Indeed, Officer Ellis testified that, immediately after he entered 

the emergency room, Lieutenant Johnson told him “that there were three 
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males that just left the ER,” that one of the three males had a gun, and that 

the three males were presently in a blue Mercury automobile that was in the 

parking lot. Id. at 36. Officer Ellis testified that, after he received this 

information, he “turned around and went outside and right to the parking 

lot.” Id. Officer Ellis testified that he then scanned the lot for a blue 

Mercury automobile and was able to discern a blue Mercury automobile with 

three individuals inside. Id. at 38-39. Officer Ellis testified that, after 

locating the vehicle, he walked toward the automobile and, “immediately

upon [him] walking over toward that direction that’s when [] Harper exited 

the vehicle.” Id. at 39. As such, all of the relevant events in this case 

occurred in close temporal proximity to one another. 

Next, we consider the factor of whether, prior to the seizure, the 

officer witnessed the individual act suspiciously or irregularly. However, to 

analyze this factor, we must determine when Officer Ellis seized Harper.23 

As noted above, after Officer Ellis received the tip, the officer went out 

into the parking lot, scanned the lot, and noticed a blue Mercury automobile 

with three people inside. Id. at 36-39. Officer Ellis testified that, as soon as 

____________________________________________

23 Within the trial court’s opinion to this Court, the trial court held that 

Harper was seized at the moment of the frisk. Trial Court Opinion, 3/23/15, 

at 7 (“[Officer] Ellis performed a Terry [f]risk and search upon his first 

contact with [Harper]”). As we will discuss in the body of this memorandum,

we conclude that Harper was seized seconds prior to the frisk, when Officer 

Ellis got close enough to Harper to tell Harper “[o]kay, stop.” N.T. 

Suppression Hearing, 9/26/14, at 41.
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he turned to walk in the direction of the Mercury, Harper exited the vehicle, 

frantically approached the officers, and informed the officers that he, Harper, 

was the brother of the shooting victim inside the hospital. Id. at 38-42. It 

is uncontradicted that Harper initiated the contact with the officers, that 

Harper spoke to the officers before he was spoken to, and that, before 

Officer Ellis said anything, Harper identified himself as the brother of the 

shooting victim. Id. Further, there is no evidence that, when Officer Ellis 

and Harper were walking towards one other, Officer Ellis had his weapon 

pointed at Harper, demonstrated any show of authority, or acted in such a 

manner as to demonstrate to a reasonable person that Harper was being 

restrained. Id.; see also Mendenhall, 715 A.2d at 1119-1120. To be 

sure, the uncontradicted evidence in this case demonstrates that Harper 

freely approached Officer Ellis. 

As Officer Ellis testified, after Harper frantically declared that he was 

the brother of the shooting victim, Officer Ellis got close enough to Harper to 

say “[o]kay, stop,” and Officer Ellis then performed a Terry pat down on 

Harper’s person. N.T. Suppression Hearing, 9/26/14, at 41. 

Therefore, the uncontradicted evidence in this case demonstrates that 

Harper was not seized until after he frantically approached Officer Ellis and 

declared that he was the brother of the shooting victim. As such, with 

respect to the behavior of Harper prior to the seizure, we note that it is 

uncontradicted that Harper acted “frantically” – and not normally – prior to 

the seizure.
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With respect to the next factor – the time and place of the stop – we 

observe that the stop occurred in the afternoon and at a hospital where a 

homicide victim had been taken.

Finally, we analyze police corroboration of the tip and police 

corroboration of any alleged criminal activity. As has already been 

discussed, on the day in question, Officer Ellis traveled to the Albert Einstein 

Hospital emergency room because a gunshot victim had been taken to 

hospital for treatment. As Officer Ellis testified, immediately upon entering 

the emergency room, Lieutenant Johnson informed Officer Ellis that “there 

were three males that just left the [emergency room],” that one of the three 

males had a gun, and that the three males were in a blue Mercury 

automobile that was in the parking lot. N.T. Suppression Hearing, 9/26/14, 

at 36. It is uncontradicted that, almost immediately after being informed of 

the tip, Officer Ellis partially corroborated the tip by identifying three men, 

inside of a blue Mercury automobile, which was parked in the hospital 

parking lot. 

Further, as both this Court and the trial court held, before the police 

initiated contact with Harper, Harper exited the vehicle and “frantically” 

identified himself as the brother of the shooting victim. Given that the 

anonymous tipster identified one of the “three males that just left the 

[emergency room]” as possessing a gun – and that Harper frantically 

identified himself as the brother of a gunshot victim who was being treated 

in the emergency room – we conclude that Harper’s own statement and 
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actions further partially corroborated the tip. Stated another way, by 

declaring (truthfully or not) that he was the brother of the gunshot victim 

who was being treated in the emergency room, Harper’s own statement 

linked him to the report of a “man with a gun” who had “just left the 

[emergency room].”

Viewing the totality of “the evidence introduced by [the defendant] 

along with any evidence introduced by the Commonwealth which remains 

uncontradicted,” we conclude that Officer Ellis had reasonable suspicion to 

believe that Harper “had something to do” with the shooting incident 

involving his brother and that he was armed. See N.T. Suppression 

Hearing, 9/26/14, at 58 and 63. Certainly, even though the tip was 

anonymous and even though the tip initially “carrie[d] a low degree of 

reliability,” the totality of the circumstances in this case establish that Officer 

Ellis had reasonable suspicion to not only perform a Terry frisk of Harper, 

but to then detain Harper following the Terry frisk, so that Officer Ellis could 

verify Harper’s identity. To reiterate, these circumstances include: the 

asserted, personal basis of the tipster’s knowledge; the moderate specificity 

of the tip, details of which were ultimately corroborated by Officer Ellis; 

Officer Ellis’ extensive police training and experience; the fact that Harper 

was located in the precise location and accompanied by the same number of 

people that the tipster declared; the close temporal proximity of all relevant 

events in this case; Harper’s “frantic” and irregular behavior prior to the 

seizure; the fact that the stop occurred in the parking lot of a hospital 
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emergency room, where a shooting victim was being treated; the fact that, 

prior to the seizure, Harper linked himself to the gunshot victim by 

“frantically” telling Officer Ellis that he was the brother of the gunshot 

victim; and, the fact that the entire tip revolved around a “man with a gun” 

– who, it was reported, had been in a hospital emergency room where a 

gunshot victim was being treated. 

Given the totality of the circumstances in this case, we conclude that 

Officer Ellis had reasonable suspicion to perform a Terry frisk of Harper and 

to then detain Harper following the Terry frisk, so that the officer could 

verify Harper’s identity. We conclude that the trial court erred in concluding 

otherwise. 

Further, since Harper did not have an expectation of privacy in the 

vehicle, we conclude that the trial court erred when it granted Harper’s 

motion to suppress the physical evidence in this case.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/2016
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