Carrying Concealed Not Legal Grounds to Stop and Search a Person in PA

U.S. Supreme Court Image NRA-ILA
U.S. Supreme Court Image NRA-ILA

U.S.A.-(Ammoland.com)- 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 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.


About Dean Weingarten:Dean Weingarten

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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RoyD
RoyD
9 months ago

“This case shows black people have the same legal rights as others.”

The above quote is not the problem. The problem is that too many “black people” don’t also realize that they also have civic responsibilities or they just choose to disregard them.

Grim
Grim
9 months ago
Reply to  RoyD

The real problem is that you are a Russian troll!

RoyD
RoyD
9 months ago
Reply to  Grim

Privyet, comrade.

RoyD
RoyD
9 months ago
Reply to  Grim

That’s the thing, USA, you go too far right and you end up being left. Nothing wrong with being something that keeps an even keel.

RoyD
RoyD
9 months ago
Reply to  RoyD

I give you a prime example since at least one here lives in fantasy land. Feel free to browse all the pages.

https://www.ar15.com/forums/General/ENRICHED-Massive-brawl-involving-hundreds-of-people-forces-Connecticut-mall-to-close-early/5-2283154/?page=1

a.x. perez
a.x. perez
9 months ago

I live in a blue county in Texas, El Paso. It is majority latino and our PD chief is Black. Back when open carry with a license was legalized in Texas Chief Allen instructed his officers only to ask for licenses when someone was acting suspiciously in some other manner than having a holstered pistol visible on their person. (As an aside, since Jan. 2016 I have only observed 3 civilians openly carrying a hand gun, one guy who should have closed his shirt better, and one printing so badly it counted as concealed only out of courtesy.). After the… Read more »

Wild Bill
Wild Bill
9 months ago
Reply to  a.x. perez

@axp, Good observations, but what are assault arms?

Stag
Stag
9 months ago

I don’t remember the 2A saying anything about the right to bear arms being dependent on your level of intoxication or posession of a plant.

RoyD
RoyD
9 months ago
Reply to  Stag

I think that horse is dead, Jim.

Heed the Call-up
Heed the Call-up
9 months ago
Reply to  Stag

Stag, 100%, though not illegal, it could be unwise depending upon one’s level of consumption or use.

Stag
Stag
9 months ago

Carrying in any fashion is not a legal reason to search someone.

John
John
9 months ago

If the clerk advised LE of Hick’s intoxication and odor of pot, and carrying a firearm, It appears they zeroed in on the firearm, no doubt for Officer Safety and safety of citizens in immediate area. They could of let him drive away, and make their own case (Probable Cause) of DWI, which is common, and the stop would have been reasonable, and while conducting a sobriety, the firearm could have been temporarily seized for officer safety. A DWI would have caused an arrest and the vehicle impounded – and either the pot would have been found on Hicks or… Read more »

Heed the Call-up
Heed the Call-up
9 months ago
Reply to  John

John, the stop was illegal because there was no legal justification for it. If they followed him, and he drove erratically, then the police would have had legal grounds for a traffic stop. However driving while black is not legal grounds for a traffic stop, and the court decision acknowledges that. Any evidence discovered after an illegal stop is inadmissible.

Wild Bill
Wild Bill
9 months ago

I see that a certain troll is back. He thinks that he knows what is in specific people’s minds, without speaking with them, or without his being at the incident. Does anyone know how a thing is treasured the least?

Warlok11
Warlok11
9 months ago
Reply to  John

YOU ARE A STUPID ASSHOLE, they zeroed in on him because he was an armed black man. From your doscourse it is obvious you think all black people smoke pot, and drink alcohol. Of course this person could be muslim and is forbidden drugs, or alcohol as tenets of his faith, but the first thing YOU say is he was smoking drugs, or drinking, sinply because he is a black person gassing up his car. Why do black people have to explain themselves to every white person, when they are just MINDING THEIR BUSINESS AND LIVING THEIR LIVES. Filth like… Read more »

RoyD
RoyD
9 months ago
Reply to  Warlok11

“Of course this person could be muslim and is forbidden drugs, or alcohol as tenets of his faith…” You mean like the Muslims who hijacked the airliners and killed thousands on 9-11? Or maybe those fellas running rampant in the middle east killing and raping and taking sex slaves? Oh, that’s right, all of those activities are allowed and even commanded in the Muslim religion. Go sell crazy, and stupid, some place else. As far as “Tulsa” I suggest that you find out the facts of what occurred there and why it happened. You are just another person poisoned by… Read more »

RoyD
RoyD
9 months ago
Reply to  RoyD

USA, this is my kind of “Old Black Magic.”

https://www.youtube.com/watch?v=WX_qNnc2_FM

Finnky
Finnky
9 months ago
Reply to  Warlok11

@Warlok11 – Please seek professional help getting past your prejudices. You are seriously sick. Hicks was stopped fo4 carrying a gun, which was wrong and only made more wrong if also done for racial profiling. As I understand, the clerk called police because Hicks was obviously intoxicated and driving – police were just too lazy to pause long enough to observe driving for themselves in order to make a “proper” stop. Lives saved by getting drunk off the road may have included his own black ass as well as whatever families he could have hit – whether his victims would… Read more »

Heed the Call-up
Heed the Call-up
9 months ago
Reply to  Warlok11

Warlock, a quick Internet search would explain to you the man referenced in this story was arrested for dui. It was ruled that since the stop was illegal, he could not be charged with that crime. He also smelled of Marijuana and was found to have a small amount on his person. That, too, was inadmissible in court, due directly to the illegal stop. So in this instance, the black man was smoking pot and drinking alcohol. I know quite a few whites and Hispanics that also do the same. Does that mean everyone does? Obviously not, as I also… Read more »

Stripeseven
Stripeseven
9 months ago

Deprivation Of Rights Under Color Of Law:
Summary: Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

Ansel Hazen
Ansel Hazen
9 months ago

Interesting that in light of those two other things LE went after him for the gun. Probably thought it was a slam dunk in light of Mr. Hick’s skin color.

Old Scout
Old Scout
9 months ago
Reply to  Ansel Hazen

Where?

Heed the Call-up
Heed the Call-up
9 months ago
Reply to  Ansel Hazen

Ansel, actually, he was convicted of a dui. However, the issue was that he was stopped because of possession of the firearm, not due to erratic driving. If they followed him, and stopped him after witnessing erratic driving, the stop would have been legal and everything they discovered would have been admissible. However, the court ruled driving while black is not a legal reason for a traffic stop; therefore, any evidence discovered is inadmissible.

RoyD
RoyD
9 months ago

No, USA, they can ask you all the questions they want and you are free to not answer or tell them to pound sand. What they may not do is detain you without probable cause for any length of time.

Deplorable Bill
Deplorable Bill
9 months ago

Good job Dean. My understanding of the 2A is that any citizen of proper age, who is not in jail or the loony farm, not only has the right to but is mandated to keep and bear arms. The word “MALITIA” is used as a job description (when the call comes) and infers the use of military arms. Also, find the statement; “the right of the people to keep and bear arms shall not be infringed”. This right is as self evident as the rest of every American citizen’s “UNALIENABLE RIGHTS”. Yamamoto, the man who planned the attack on Perl… Read more »

Treadin' Water
Treadin' Water
9 months ago

It’s “MILITIA” and “INALIENABLE RIGHTS” … and it has never been substantiated that Yamamoto made that comment.

https://www.factcheck.org/2009/05/misquoting-yamamoto/
https://legal-dictionary.thefreedictionary.com/Inalienable+rights

Rattlerjake
Rattlerjake
9 months ago

What is a “MALITIA”?