Commonwealth v. Foster, J., Aplt.

[J-22-2025] [MO: Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 12 WAP 2024 : Appellee : Appeal from the Order of the : Superior Court entered July 17, : 2023, at No. 619 WDA 2022, v. : affirming the Judgment of Sentence : of the Court of Common Pleas of : Allegheny County entered January JAMAR FOSTER, : 5, 2022, at No. CP-02-CR-0013992- : 2019.

Appellant : : ARGUED: April 9, 2025

DISSENTING OPINION

JUSTICE WECHT DECIDED: MAY 18, 2026 I join Justice Donohue’s Dissenting Opinion in all respects, save one. I cannot acquiesce in perpetuating the legal fiction that the purported “high crime” character of a neighborhood can (or should) be a relevant factor in a reasonable suspicion or probable cause determination. 1 As I have explained elsewhere, 2 while police investigatory, staffing, patrol, and response decisions may (and routinely do) relate to judgments and

1 See Diss. Op. at 4-5.

2 See Commonwealth v. Lewis, 343 A.3d 1016, 1054 (Pa. 2025) (Wecht, J., concurring and dissenting) (acknowledging that “[p]olice officers’ intuition and experience are properly used every day—indeed every hour and minute—to make choices and decisions about patrol priorities, physical and electronic surveillance, resource allocation, and all manner of other proper law enforcement activities,” but explaining that such practices cannot be a substitute for individualized reasonable suspicion that is predicated and developed upon the suspect’s conduct, as observed by the law enforcement officer); see also Commonwealth v. Dobson, 307 A.3d 612, 625 (Pa. 2024) (Wecht, J., Opinion in Support of Reversal); Commonwealth v. Galloway¸ 284 A.3d 870, 875 (Pa. 2022) (Wecht, J., dissenting). experience concerning incidence of criminal activity in particular areas, such decisions do not equate to individualized reasonable suspicion. Like police judgments and experience concerning crime rates in areas patrolled, technologies like ShotSpotter can form important and useful tools in police investigations. What they cannot do is substitute for the individualized reasonable suspicion that our Constitutions require. The Court should differentiate between investigatory tools and evidentiary requirements.

[J-22-2025] [MO: Dougherty, J.] - 2

[J-22-2025] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 12 WAP 2024 : Appellee : Appeal from the Order of the : Superior Court entered July 17, : 2023, at No. 619 WDA 2022, v. : affirming the Judgment of Sentence : of the Court of Common Pleas of : Allegheny County entered January JAMAR FOSTER, : 5, 2022, at No. CP-02-CR-0013992- : 2019.

Appellant : : ARGUED: April 9, 2025

OPINION

JUSTICE DOUGHERTY DECIDED: MAY 18, 2026 ShotSpotter is an electronic system, utilized by the City of Pittsburgh, to detect sounds of gunfire and report it to the police. See Commonwealth v. Weeden, 304 A.3d 333, 337 n.6 (Pa. 2023). The system’s audio sensors detect sounds which may be gunfire. The sounds are then reviewed by experts to determine whether they are gunfire or other similar noises. Their location is triangulated using the coordinates of the sensors in the vicinity. If the noise is determined to be gunfire, the information is sent to the subscribing police department.

In this case, two ShotSpotter alerts indicated five shots had been fired near an address in Pittsburgh in the middle of the night. When a police officer responded to the location, he encountered appellant and subjected him to an investigative detention. 1 Appellant filed a motion to suppress the evidence subsequently obtained by the police, which was denied. As detailed below, we hold the totality of the circumstances at the time of appellant’s investigative detention created reasonable suspicion justifying the stop. Accordingly, we affirm the order of the Superior Court upholding the denial of suppression.

At around 2:00 a.m. on September 17, 2019, Officer Nathan Powers of the Pittsburgh Police Department received a ShotSpotter alert indicating a single gunshot had been fired near 1439 Hoffman Street in Pittsburgh. Multiple police officers responded to the alert. On his way to the address indicated, a second alert came through, notifying Officer Powers of four additional shots at the same location. When he received the second alert, Officer Powers was “only a block or two away” and he arrived at the intersection of Hoffman Street and Chateau Street approximately “10 to 15 seconds” later.

N.T. Suppression Hearing, 10/1/20, at 6. While he was still on Chateau Street approaching Hoffman Street, Officer Powers saw a car parked on Hoffman Street with its headlights on. Appellant was in the driver’s seat, and a woman, later identified as Tiffany Towns, was in the front passenger seat. Officer Powers turned onto Hoffman Street and activated his emergency lights and dash camera. As the officer drove on Hoffman Street towards the parked car — which was “facing [the officer] parked against the flow of traffic on the right-hand side of the road” — he saw appellant exit the car and walk towards a house. Id. at 13. Simultaneously, Towns “looked like she was moving around in the car trying to grab things, . . . like, her purse.” Id. at 8. Officer Powers stopped his car, got

[J-22-2025] - 2 out, and “ordered [appellant] to return to the street so [he] could conduct an investigation.” Id. at 7. Appellant and Towns were the only people out on the street at the late hour.

Officer Powers, along with the other officers on the scene, repeatedly ordered appellant to return to the street to comply with the investigation, but appellant refused and continued to walk away. The officers “feared that he was armed” due to “the ShotSpotter notification, and [his] walking away.” Id. at 8. The officers drew their guns, continued to order appellant to comply at gunpoint, and forcibly handcuffed him on the ground.

Appellant was charged with driving under the influence (DUI) highest rate of alcohol, see 75 Pa.C.S. §3802(c), DUI general impairment, see id. at §3802(a)(1), and driving while operating privilege is suspended or revoked, see 75 Pa.C.S.

§1543(b)(1.1)(ii). 2 Prior to trial, appellant filed a motion to suppress claiming all evidence obtained subsequent to the seizure of his person should be suppressed as the seizure was not supported by reasonable suspicion. Specifically, appellant claimed “[a] seizure occurred when Officer Powers activated the lights of his police vehicle and ordered [him] to return to the street.” Motion to Suppress, 4/9/20, at 3. Appellant argued the officer did not have reasonable suspicion to believe he was involved in criminal activity at the time of the seizure, and any reasonable suspicion formed only after the illegal seizure.

After Towns and appellant were separated and read their rights under Miranda v. Arizona, 384 U.S. 436 (1966), Towns explained she accidentally discharged her firearm in the vehicle and then, due to a malfunction, accidentally discharged an additional two to three rounds. Officer Powers determined the firearm was registered to Towns, but her permit was revoked. Towns was prosecuted separately and ultimately pleaded guilty to firearms not to be carried without a license under 18 Pa.C.S. §6106(a)(2). See Docket CP-02-CR- 0014010-2019.

[J-22-2025] - 3 Appellant claimed his unlawful seizure resulted in a violation of his rights pursuant to the Fourth Amendment to the United States Constitution 3 and Article I, Section 8 of the Pennsylvania Constitution. 4 At the suppression hearing, Officer Powers testified to the above facts. In addition, he explained he had been a police officer for “[a]pproximately five years” and worked in “Zone 1, North Side” at the time of this incident. N.T. Suppression Hearing, 10/1/20, at 4. When specifically asked whether that area was known as a high-crime area, the officer replied: “Manchester has its hot spots, yes.” Id. at 8. Officer Powers was then asked whether he would “consider this specific section to be a hot spot[,]” to which he replied: “[i]t has been in the past, yes.” Id. at 9.

On cross-examination the officer was questioned regarding his knowledge of ShotSpotter. He explained ShotSpotter alerts report an address accurately within 80 to feet of the detected noise, and it takes ShotSpotter approximately 30 to 45 seconds from the origination of the sound to determine whether it was a gunshot and deliver the information to the police department. Ultimately, the trial court denied the motion to suppress.

Appellant proceeded to a bench trial. At trial, Officer Powers again testified to the seizure and explained that, after seizing appellant, he noted his eyes were glassy and U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”).

[J-22-2025] - 4 watery and he smelled of alcohol. The Commonwealth played dash camera footage from the officer’s police vehicle. 5 Officer Powers testified he did not find any contraband on appellant’s person when he performed a pat down. The officer then investigated appellant’s vehicle and found the engine was hot to the touch and the windows had condensation on the inside. Officer Powers explained he concluded the vehicle was recently driven, and based upon appellant’s position in the driver’s seat, he further investigated for potential DUI. Appellant failed a field sobriety test, and his blood alcohol content was measured at .200. The officer ran appellant’s driver’s license through a police database, which reported his license was suspended for DUI. 6 Appellant testified in his own defense to explain he did not drive the vehicle, and he was in his mother’s home when he heard gunshots and returned outside to the car where his girlfriend was waiting, at which point Officer Powers arrived.

The trial court found appellant guilty of the offenses charged and imposed a maximum sentence of sixty days’ incarceration and six months’ probation. The Superior Court affirmed appellant’s judgment of sentence on appeal. See Commonwealth v. Foster, 619 WDA 2022, 2023 WL 4557061 (Pa. Super., July 17, 2023) (unpublished memorandum). Regarding appellant’s suppression claim, the panel held appellant was subjected to an investigative detention when Officer Powers exited his police car and ordered appellant to return to the street. See id. at *4 (“[T]he parties agree that [a]ppellant was subjected to an investigative detention when Officer Powers exited his police cruiser

[J-22-2025] - 5 and ordered [a]ppellant to return to Hoffman Street.”); id. at *4 n.8 (“We accept the parties’ agreement that [a]ppellant was seized when Officer Powers exited his police vehicle and ordered [a]ppellant to return to the street to talk to the officer.”). The panel agreed with the Commonwealth that the totality of the circumstances at that juncture supported reasonable suspicion, namely: two ShotSpotter alerts detecting five gunshots; the mere 10-to-15-second delay between the second alert and appellant’s presence in a vehicle at the location; appellant and Towns being the only people at the location; appellant “seemingly behaving evasively” in exiting his vehicle and walking away from the officer; Towns “appear[ing] to be grabbing for things in the front-passenger seat”; and “the location in question was a high[-]crime area at 2 a.m.” Id. at *6, quoting Commonwealth’s Superior Court Brief at 20-21 (footnote omitted in original). The panel relied on Commonwealth v. Raglin, 178 A.3d 868 (Pa. Super. 2018), which found reasonable suspicion where a single shot was reported by ShotSpotter in a high-crime area, Raglin and another man were spatially and temporally close to the report, and Raglin was evasive when an officer arrived. The panel reasoned “[t]he totality of the circumstances in this case were at least equivalent to, if not more significant, than those in Raglin in terms of demonstrating reasonable suspicion to validate the investigative detention.”

Foster, 2023 WL 4557061, at *7. 7 We granted discretionary review to address the following condensed and rephrased issue: The panel noted appellant and Raglin both argued ShotSpotter alerts are akin to or less reliable than an anonymous tip as they lack corroboration and are not sufficient to justify a Terry stop. While the Raglin panel observed ShotSpotter alerts seem more reliable than anonymous tips, it ultimately declined to rule on the reliability of the technology, instead reasoning the stop “was based on more than just the data obtained from that system.” Foster, 2023 WL 4557061, at *6, quoting Raglin, 178 A.3d at 873. Similarly, here, the panel determined that in light of the totality of the circumstances supporting reasonable suspicion, it “need not decide whether [a]ppellant is correct that a ShotSpotter alert is similar in reliability to an anonymous tip.” Id. at *7.

[J-22-2025] - 6 Whether the Superior Court erred in affording too much weight to [appellant’s] temporal and spatial proximity to a ShotSpotter alert in assessing whether reasonable suspicion existed to support a Terry stop.

Commonwealth v. Foster, 316 A.3d 619 (Pa. 2024) (per curiam). As this issue requires our review of the suppression court’s denial of suppression, our scope of review is limited to the record from the suppression hearing. See Commonwealth v. Barr, 266 A.3d 25, (Pa. 2021). 8 “We review trial court suppression orders to determine whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.” Id., citing Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017). Where the factual findings are supported by the record, we are bound by them. See Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa. 2009). We assess the record in the light most favorable to the prevailing party, which in this case was the Commonwealth. See Commonwealth v. Mathis, 173 A.3d 699, 706 (Pa. 2017). “As an appellate court, we are not bound by the suppression court’s conclusions of law; rather, when reviewing questions of law, our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019), quoting Commonwealth v. Wilmer, 194 A.3d 564, 567 (Pa. 2018).

Appellant argues the lower courts weighed his spatial and temporal proximity to the ShotSpotter alerts too heavily when determining whether reasonable suspicion justified his seizure. See Appellant’s Brief at 25 (claiming this argument has been “glossed over” and not “meaningfully analyze[d]”). He claims the panel below treated the ShotSpotter alerts similarly to eyewitness testimony of a crime taking place with a description of the perpetrator. According to appellant, this analysis ignores his question, which is “whether such evidentiary weight can be applied to ShotSpotter[.]” Id. at 26.

[J-22-2025] - 7 Appellant contends the only facts articulable at the time of his seizure were the ShotSpotter alert and his presence “in a high[-]crime area at night[.]” Id. As appellant sees it, the Pennsylvania Constitution should require, similar to an anonymous tip, that a ShotSpotter alert be further corroborated by some indicia of criminal activity by a particular suspect before an individual may be seized.

Appellant rejects the panel’s comparison of his case to Raglin and seeks to distinguish the two. Particularly, he notes the record in this case reflects: the area where he was seized is a residential neighborhood; ShotSpotter alerts can relay inaccurate addresses; Officer Powers acknowledged the possibility another individual fired a gun “in the general vicinity of the alert”; there was no evidence appellant knew police were approaching; and there was no evidence a crime was being committed — all things contrary to the facts in Raglin. Id. at 33. Ultimately, appellant argues the Superior Court in both cases assumed ShotSpotter’s reliability and equated it to “known eyewitness testimony or to direct observation.” Id. at 35. He claims that without the alert, there would have been no police response in this case, necessitating an analysis of the alert. On the reliability of ShotSpotter, appellant claims the system is limited by its audio-only nature, as it provides no information related to potential suspects. Appellant would have us treat ShotSpotter as an anonymous tip, which we have determined cannot, on its own, create reasonable suspicion to justify a Terry stop.

Amici curiae the Pennsylvania Innocence Project and the Pennsylvania Association of Criminal Defense Lawyers (collectively, PAIP), the American Civil Liberties Union and the American Civil Liberties Union of Pennsylvania (collectively, ACLU), and the Allegheny County Public Defender’s Office (ACPD) filed briefs in support of appellant, echoing his arguments. Amici agree ShotSpotter is a faulty method for detecting gunfire.

See Amicus PAIP Brief at 14 (“ShotSpotter’s use of human reviewers does not obviate

[J-22-2025] - 8 the risk of false positives. Humans may misidentify non-gunfire as gunfire as or more often than ShotSpotter’s algorithm[.]”); Amicus ACLU Brief at 8-21 (arguing ShotSpotter’s methods are faulty, subjective, and produce inconsistent results); Amicus ACPD Brief at (“ShotSpotter’s ‘sensors’ are not high-tech directional detectors but microphones ‘similar to ones found in cellphones,’ meaning that they are as susceptible to error as any cell phone mic.”) (citation omitted). More relevantly to the question before us, amici echo appellant’s call for us to find a ShotSpotter alert brings little value to a reasonable suspicion analysis. See Amicus PAIP Brief at 24-25 (“[ShotSpotter alerts] could as easily reflect innocuous, non-criminal activity, like construction or vehicle noise[s], as a gunshot.

And they cannot connect specific individuals to a detected noise. As such, they cannot establish reasonable suspicion[.]”); Amicus ACLU Brief at 26-29; Amicus ACPD Brief at 10-13. Additionally, amici are concerned ShotSpotter’s placement in communities of color furthers the risk of racial profiling. See, e.g., Amicus ACLU Brief at 22 (“Since ShotSpotter microphones are predominately placed in neighborhoods inhabited by people of color, false positive alerts can also exacerbate over-policing of these communities and cause increases in discriminatory stops, frisks, searches, and citations.”); Amicus ACPD Brief at 30 (“Especially concerning is the overlap of ShotSpotter’s sensors with areas that police have claimed are ‘high-crime,’ given that, according to the Superior Court’s reasonable suspicion analysis in this case, the conjunction of a ShotSpotter alert and a ‘high-crime area,’ absent any other evidence, will suffice to justify a Terry stop.”).

The Commonwealth, on the other hand, argues appellant wrongly claims his detention was solely based on his close proximity to the ShotSpotter alerts and his presence in a high-crime area at night. The Commonwealth asserts there were “several other factors” which “led the Superior Court to conclude that the totality of the circumstances justified a Terry stop.” Commonwealth’s Brief at 12. Those additional

[J-22-2025] - 9 factors included appellant’s decision to walk away from Officer Powers despite his arrival in a police vehicle with lights activated, Towns’s movements as she appeared to grab items in the vehicle, and the fact appellant and Towns were the only people present in the area. The Commonwealth notes the Superior Court panel agreed with its description of these factors, in which it described appellant’s behavior as “evasive[ ].” Id. at 16, citing Foster, 2023 WL 4557061, at *6-7. The Commonwealth asserts appellant’s argument “that it is improper for a court to hold that an investigative detention is warranted based only on an individual’s close proximity in time and space to a ShotSpotter notification occurring at night in an area known for criminal activity” does not consider the facts of this case and the holding of the panel below. Id. The Commonwealth goes on to explain it believes the only way for us to find in appellant’s favor is to remove the ShotSpotter notification from the list of factors supporting reasonable suspicion.

To the extent appellant challenges ShotSpotter’s accuracy, the Commonwealth asserts appellant did not preserve such a challenge. Thus, any challenge to the validity of the technology is waived and, the Commonwealth contends, appellant is “constrained by the record below, which demonstrated that five gunshots were fired in the vicinity of 1439 Hoffman on the date and time in question[.]” Id. at 19. The Commonwealth continues to argue a ShotSpotter alert is distinguishable from an anonymous tip, which can be based on lies formed with malicious intent, as there is no human element to the technology. Further, the Commonwealth claims even if ShotSpotter were similar to an anonymous tip, and needed to be corroborated, Officer Powers possessed corroborating information when he seized appellant: “arriving at the scene within seconds of the second ShotSpotter alert [Officer Powers] observed [appellant] chose to walk away from him instead of remaining where he had been and acknowledging the presence of the police.

This behavior, which suggested an evasiveness on the part of [appellant], served to

[J-22-2025] - 10 corroborate the ShotSpotter notification[.]” Id. at 24. Finally, the Commonwealth argues the totality of the circumstances here weigh greater in favor of reasonable suspicion than those in Raglin and suggests we take persuasive value from that decision.

“Both the Fourth Amendment of the United States Constitution and Article I, §8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures.” Commonwealth v. Cook, 735 A.2d 673, 675 (Pa. 1999) (citation omitted). “Not every encounter between a law enforcement officer and a citizen constitutes a seizure warranting constitutional protections.” Commonwealth v. Adams, 205 A.3d 1195, 1199 (Pa. 2019). “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id., quoting Florida v. Bostick, 501 U.S. 429, 434 (1991). There are three types of interactions between the police and private citizens: mere encounter, investigative detention, and arrest. See Hicks, 208 A.3d at 927. A mere encounter “does not constitute a seizure . . . and requires no particular suspicion of criminality[.]” Id. An investigative detention, on the other hand, “constitutes a seizure of a person, and to be constitutionally valid police must have a reasonable suspicion that criminal activity is afoot.” Adams, 205 A.3d at 1200 (citation omitted). An arrest is also, of course, a seizure, “and must be supported by probable cause.” Id. (citation omitted).

While “[n]o bright lines separate these types of encounters,” the United States Supreme Court and this Court have endorsed “an objective test by which courts may ascertain whether a seizure has occurred to elevate the interaction beyond a mere encounter.” Id. (citation omitted). This test considers whether, under the totality of the circumstances, “a reasonable person would have felt free to leave or otherwise terminate the encounter.” Commonwealth v. Lyles, 97 A.3d 298, 303 (Pa. 2014). A “reasonable person” under this test is one who is “innocent of any crime[.]” Commonwealth v.

[J-22-2025] - 11 Livingstone, 174 A.3d 609, 621 (Pa. 2017), quoting Commonwealth v. Jones, 378 A.2d 835, 840 (Pa. 1977). “[W]hat constitutes a restraint on liberty prompting a person to conclude that he is not free to ‘leave’ will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.” Lyles, 97 A.3d at 303, quoting Michigan v. Chesternut, 486 U.S. 567, 573-74 (1988).

Reasonable suspicion justifying an investigative detention must be “based upon specific and articulable facts . . . that criminality is afoot.” Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000), citing Terry, 392 U.S. at 21, 30. The police must have “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981). This is not a particularly demanding standard. “Although a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” Kansas v. Glover, 589 U.S. 376, 380 (2020), quoting Navarette v. California, 572 U.S. 393, 397 (2014). “The reasonable suspicion inquiry ‘falls considerably short’ of 51% accuracy[.]” Id. at 381, quoting United States v. Arvizu, 534 U.S. 266, 274 (2002). The assessment of whether reasonable suspicion exists “requires an evaluation of the totality of the circumstances[.]” Zhahir, 751 A.2d at 1156. This totality is based on all facts, and “[e]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Cook, 735 A.2d at 676. The investigative detention must be “justified at its inception”; circumstances arising after the suspect was detained cannot retroactively provide a lawful basis for the stop. Zhahir, 751 A.2d at 1156, quoting Terry, 392 U.S. at 20.

Because an investigative detention must be lawful at its commencement, we begin with consideration of when Officer Powers seized appellant. The suppression record

[J-22-2025] - 12 reflects Officer Powers received an initial ShotSpotter alert of a single shot fired at 1439 Hoffman Street, followed by a second alert of four shots fired at the same location. He drove to this location and observed a parked car with appellant and Towns inside. After observing the car, the officer turned his police cruiser from Chateau Street onto Hoffman Street and activated his lights and dash camera. As he drove on Hoffman Street in the direction of the parked car, Officer Powers saw appellant exit the car and walk towards a private residence while Towns made furtive movements inside the car. 9 The officer stopped his car, exited his vehicle, and ordered appellant to return to the street. At that juncture, when Office Powers ordered appellant back to the street, appellant was subjected to an investigative detention under Article I, Section 8 of the Pennsylvania Constitution. Having been expressly commanded by a police officer to stop walking away and return to the officer, a reasonable person, innocent of any crime, would not have felt free to simply disobey the official order and continue on his way. See Jones, 378 A.2d at 839 (“If a citizen approached by a police officer is ordered to stop or is physically restrained, obviously a ‘stop’ occurs.”); see also Commonwealth v. Jackson, 302 A.3d 737, 762 n.1 (Pa. 2023) (opinion in support of reversal) (Dougherty, J.) (“Under the Fourth Justice Donohue insists appellant “had already exited [the car] and begun walking away when the [sic] Officer Powers turned on his emergency lights[.]” Dissenting Opinion at 2 n.2 (Donohue, J.). In support thereof, she notes the officer’s testimony that “[w]hen I turned down the street and turned on the lights, he was walking away.” N.T. Suppression Hearing, 10/1/20, at 14. However, his testimony at other points in the suppression hearing provided that he activated his overhead lights while appellant was still seated in the car.

See id. at 7 (“I turned my vehicle down the street to approach the vehicle and intended to talk to the two individuals. I activated my lights and my camera system to detain the individuals in the car. I observed a black male leave the driver’s seat and walk towards a private residence.”) (emphasis added); id. at 13 (“And I saw the vehicle with its lights on being occupied. Then I turn down the street and initiate, turned on my lights.”) (emphasis added). Pursuant to the governing standard of review obliging us to assess the record in the light most favorable to the Commonwealth as the prevailing party at the suppression hearing, any conflict in the testimony in this regard must be resolved in the Commonwealth’s favor, i.e., appellant did not exit the car until after Officer Powers activated his emergency lights. See Mathis, 173 A.3d at 706.

[J-22-2025] - 13 Amendment to the United States Constitution, a police order to stop must actually be obeyed by the person to constitute a seizure. . . . Nevertheless, under our state counterpart to the Fourth Amendment, Article I, Section 8 of the Pennsylvania Constitution, a police order to stop effectuates a seizure.”) (citations omitted). 10 In the Superior Court, appellant asserted:

Arguably, a seizure occurred even before that point [of appellant being ordered back to the street] when Officer Powers rounded the corner of Hoffman Street and activated his lights and sirens. As aptly observed in Livingstone, in the realities of everyday life, a police officer’s activation of emergency lights and sirens on his police vehicle is a clear signal that he or she is not free to leave a scene.

Appellant’s Superior Court Brief at 52-53. We hold this claim is waived for two reasons.

First, appellant has abandoned it in his briefing to this Court. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.”). Second, appellant did not preserve the issue in the trial court. Again, he alleged in the trial court that “[a] seizure occurred when Officer Powers activated the lights of his police vehicle and ordered [him] to return to the street.” Motion to Suppress, 4/9/20, at 3 (emphasis added).

That is, he did not contend in the trial court, as he did in the Superior Court, that the officer’s activation of his emergency lights and siren was alone sufficient to subject appellant to an investigative detention. For this reason too, this claim is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”). Moreover, while it is not necessary to reach the merits of appellant’s twice-waived argument, we observe that contrary to his contention, Officer Powers in fact never activated his siren. See N.T. Suppression Hearing, 10/1/20, at 12 (“I didn’t initiate my siren because it’s 2:00 in the morning.”). In addition, the facts of Livingstone did not simply involve “a police officer’s activation of emergency lights[.]”

Appellant’s Superior Court Brief at 53. Rather, in that case, Livingstone was pulled over on the right shoulder of the road with her car running and no hazard lights activated, when a police officer “activated his emergency lights and, with his passenger window down, pulled alongside [her] stopped vehicle.” Livingstone, 174 A.3d at 614 (emphasis added).

This Court “conclude[d] that, because a reasonable person in [Livingstone’s] position would not have felt free to leave after [the police officer] pulled his patrol car, with its emergency lights activated, alongside her vehicle, [Livingstone] was seized and subjected to an investigative detention.” Id. at 638 (emphasis added). Here, by contrast, when Officer Powers activated his emergency lights as he turned onto Hoffman Street, he had not pulled up alongside or behind the vehicle. See N.T. Suppression Hearing, 10/1/20, at 8 (Officer Powers testifying that as he drove down Hoffman Street towards car (continued…) [J-22-2025] - 14 Because the investigative detention occurred when Officer Powers ordered appellant to return to the street, the pertinent reasonable suspicion inquiry is whether the totality of the circumstances at that point in time provided a particularized and objective basis for suspecting appellant of criminal activity. See Zhahir, 751 A.2d at 1156.

As an initial matter, we reject the Commonwealth’s argument, credited by the Superior Court, that the purported fact the seizure occurred in a high-crime area supported reasonable suspicion. The Commonwealth’s claim of a “high-crime area” lacks record support. The entirety of the Commonwealth’s proof in this regard was as follows: Q. . . . In your training and experience in this particular area, would it be known as a high-crime area?

A. Manchester has its hot spots, yes.

Q. And would you consider this specific section to be a hot spot?

A. It has been in the past, yes.

N.T. Suppression Hearing, 10/1/20, at 8-9. This bare testimony claiming the area was a “hot spot” at some undefined time “in the past” does not equate to evidence the area was a high-crime area at the time of the seizure. See Commonwealth v. Lewis, 343 A.3d 1016, 1037 n.14 (Pa. 2025) (explaining the Commonwealth is required to prove an area is high in crime “at the time of the stop”) (emphasis in original). Moreover, as we recently held in Lewis, conclusory testimony of this sort, which simply characterizes an area in broad generalities or uses magic words without providing any rationale for the characterization, is not sufficient to prove an area is, in fact, high in crime. See id. at 1022 (“merely intoning buzzwords is never sufficient to prove an area is high in crime”). Officer Powers’s “vague remark is precisely the type of testimony” courts should be “hesitant to accept.” Id. at 1037. In fact, the testimony is so substantively and temporally vague that he observed appellant leave car and Towns make furtive movements inside of vehicle).

Livingstone did not address this situation.

[J-22-2025] - 15 we are compelled to conclude a factual finding of a high-crime area is not “supported by the record.” Id. Thus, the Superior Court erred by considering this factor in assessing reasonable suspicion, and we decline the Commonwealth’s request to consider this factor in our analysis. 11 Nonetheless, the articulable facts supported by the record are sufficient to sustain a finding of reasonable suspicion at the time Officer Powers ordered appellant to return to the street. Specifically, there were two ShotSpotter alerts, received within moments of each other, indicating five gunshots had been fired near 1439 Hoffman Street. There is no argument the ShotSpotter alerts did not indicate gunfire as reported. 12 The alerts of

While this testimony was ostensibly premised on the officer’s personal knowledge, the Lewis Court nonetheless indicated it was too “vague” to be “accept[ed]” as evidence of a high-crime area. Id. Presently, Officer Powers’s testimony summarily agreeing, in response to a leading question, that the area had been a hot spot in the past was likewise utterly vague and devoid of relevant specifics — not to mention its lack of a temporal nexus to the stop. This is exactly the type of unsubstantiated, amorphous testimony Lewis discredits. Further, the concurrence claims appellant conceded the high-crime area factor by reciting the phrase in his briefing to the Superior Court and this Court. See Concurring Opinion at 3-4 (Mundy, J.). However, “[a]n admission is not conclusively binding as a judicial admission unless the testimony is clear and unequivocal[.]” In re Risperdal Litig., 223 A.3d 633, 641 n.5 (Pa. 2019), quoting Greater Valley Terminal Corp. v. Goodman, 176 A.2d 408, 410 (Pa. 1962). Officer Powers’s bare testimony the area was a “hot spot” at some indeterminate point in the past was hardly “clear and unequivocal” evidence the location was a high-crime area at the time of the challenged seizure.

[J-22-2025] - 16 gunfire were suggestive of criminal activity. 13 They raised the possibility of violent crime, gun possession crimes, and/or the prohibited discharge of ammunition. See PITTSBURGH, PA., CODE OF ORDINANCES §695.04 (2019) (“No person shall use a weapon to discharge ammunition or arrows in any public place within the City of Pittsburgh, except . . . under appropriate supervision at duly-established target ranges” or “in circumstances permitted by the Crimes Code[.]”). 14 Importantly, appellant and Towns were the only individuals present at the precise location of the alerts. 15 Arriving immediately on the heels of the gunshots, Officer Powers was not confronted with a plethora of potential suspects but only two, one of whom was appellant. It was reasonable to infer these individuals were potentially responsible for the fired shots. See State v. Nimmer, 975 N.W.2d 598, 600 (Wis. 2022) (finding reasonable suspicion where officer arrived on scene shortly after receiving ShotSpotter alert and defendant was only individual present); 4 WAYNE R. LAFAVE, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT §9.5(g) n. 368 (6th ed. 2025) (“Association with a place as to which there is reasonable suspicion of [criminal] activity can also contribute Appellant insists we should treat ShotSpotter alerts as akin to anonymous tips. In our view, appellant’s request that we transplant the anonymous tip framework into this context unnecessarily complicates the straightforward legal issue presented: Did the totality of the circumstances at the time Officer Powers subjected appellant to an investigative detention by ordering him back to the street provide reasonable suspicion justifying the seizure? We answer this straightforward question with a straightforward answer: Yes.

[J-22-2025] - 17 to reasonable suspicion as to the person.”). That Officer Powers promptly arrived on the scene within seconds of the second alert supports this inference. His rapid response time left little opportunity for the shooter to hide or flee. The officer’s quick arrival increased the likelihood the culprit remained visible at the scene. See United States v. Jones, 1 F.4th 50, 53 (D.C. Cir. 2021) (finding reasonable suspicion existed where officers responded within a minute and a half after receiving police call reporting ShotSpotter alert and suspect was only individual present). 16 Finally, as Officer Powers drove up Hoffman Street with his lights activated, appellant’s companion, Towns, made furtive movements in the front seat of the car. “As [appellant] was leaving the vehicle,” Officer Powers observed Towns “moving around in the car trying to grab things[.]” N.T. Suppression Hearing, 10/1/20, at 8. 17 Appellant then Justice Donohue argues that since it takes ShotSpotter approximately thirty to forty- five seconds to report a gunshot to the police, “Officer Powers observed [appellant’s] vehicle at least forty to sixty seconds after the second round of shots were fired,” and “[f]orty to sixty seconds is plenty of time to flee the scene by foot and certainly by vehicle[.]” Dissenting Opinion at 12 (Donohue, J.). Sixty seconds or less is undoubtedly a very prompt response time minimizing the possibility of the culprit’s flight. Indeed, this was an even quicker police response than the one in Jones. As noted, in that case, the police arrived within a minute and a half of the police call reporting the ShotSpotter alert. See Jones, 1 F.4th at 54.

Dissenting Opinion at 5 (Donohue, J.). On the contrary, the incriminating conduct of a car passenger is unquestionably among the totality of the circumstances which may support reasonable suspicion to stop the driver, as the Supreme Court has recently reaffirmed. See District of Columbia v. R.W., 608 U.S. ___, 146 S. Ct. 1069, 1072 (2026) (per curiam) (“The driver, R.W., did not run from the car, but his companions’ flight cast his presence in a suspicious light. After all, we have observed that a car passenger . . . will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing.”) (quotation marks and citations omitted). Justice Donohue additionally contends Officer Powers “did [not] mention [Towns’s] behavior as a basis for his suspicion of [appellant].” Dissenting Opinion at 5-6 (Donohue, J.); see also id. at 6 (“Nor can we ignore that Officer Powers never articulated that Towns’[s] movements had elevated his suspicion of [appellant].”). (continued…) [J-22-2025] - 18 began “walk[ing] towards a private residence” and “away from” Officer Powers. Id. at 7, 15. These evasive behaviors supported a reasonable belief that criminal activity was afoot. See In re D.M., 781 A.2d 1161, 1164 (Pa. 2001) (“[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion[.]”), quoting Illinois v. Wardlow, 528 U.S. 119, 124 (2000). 18 In fact, Officer Powers testified his “primary concern was the two occupants.” N.T.

Suppression Hearing, 10/1/20, at 17 (emphasis added). Towns clearly did factor in the officer’s suspicions. In any case, Officer Powers’s subjective thoughts are irrelevant to the test for reasonable suspicion, which is an objective inquiry. See Wilmer, 194 A.3d at 571 n.13 (“[T]he reasonableness of the police officer’s belief is assessed on an objective, rather than subjective, basis.”); Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (“An action is reasonable under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action. . . .

The officer’s subjective motivation is irrelevant.”) (quotation marks and citation omitted, emphasis in original). Finally, Justice Donohue insists “[t]here is nothing suspicious about a woman grabbing for her purse as she prepares to exit a car.” Dissenting Opinion at 7 (Donohue, J.). Towns was doing more than grabbing for her purse. She was grabbing for “things” — plural — and she was “moving around” inside the car. N.T. Suppression Hearing, 10/1/20, at 8 (emphasis added). Moreover, she gave no indication she was preparing to exit the car. Just the opposite: she remained inside the vehicle while appellant got out and began to walk away. Most importantly, Justice Donohue ignores entirely the context in which Towns was rooting around and moving inside the car. Her furtive conduct took place as she was approached by a police cruiser with the overhead light flashing. See id. at 7-8. Because Towns’s suspicious movements were in direct response to the police presence, they most certainly did “suggest an attempt to hide or obscure evidence.” Dissenting Opinion at 6 (Donohue, J.). See James v. United States, 829 A.2d 963, 968 (D.C. 2003). (“It is to be expected that persons who are being pursued by police officers will seek to hide contraband such as an illegal weapon.”) (quotation marks and citation omitted).

We have characterized his conduct as “evasive,” which is exactly what it was. See https://www.merriam-webster.com/dictionary/evasive (last visited 5/13/26) (defining “evasive” as “tending or intended to evade”). In leaving his car at the sight of the police and seeking to withdraw into a nearby house, appellant was plainly attempting to evade or avoid contact with the police. Certainly, flight and headlong flight are acts of evasions, but they are hardly the only ones. What appellant did here was evasive as well, and as such supported reasonable suspicion. See D.M., 781 A.2d at 1164. Justice Donohue also submits that appellant “was doing precisely what we would expect a driver to do after (continued…) [J-22-2025] - 19 While none of the aforementioned factors alone may be sufficient to justify reasonable suspicion, here, we hold the totality of the circumstances — the late-night ShotSpotter alerts indicating gunfire in a residential neighborhood, the rapid police response, the sole presence of appellant and Towns at the scene, and the pair’s furtive and evasive behaviors upon the arrival of the police — amounted to reasonable suspicion particular to appellant.

Accordingly, we affirm the order of the Superior Court.

Chief Justice Todd and Justices Mundy, Brobson and McCaffery join the opinion.

Justice Mundy files a concurring opinion.

Justice Donohue files a dissenting opinion.

Justice Wecht files a dissenting opinion.

he parks his car in front of a residential building at 2 a.m., and there was no evidence tending to show that [he] walked away in response to the arrival of police.” Dissenting Opinion at 8-9 (Donohue, J.). Active avoidance is not a typical reaction to the arrival of a police cruiser with overhead lights flashing, as appellant himself elicited on cross- examination. See N.T. Suppression Hearing, 10/1/20, at 12 (“Q. That [activation of police lights] usually signifies to people when police are involved that they are to stop and stop moving; correct? A. Correct.”). In addition, as discussed, there was testimony appellant exited the car and attempted to retreat to the house while Officer Powers was bearing down on him with his lights activated. See id. at 7, 13-14. This evidence squarely supported the conclusion that his evasive conduct was responsive to the police presence.

[J-22-2025] - 20

[J-22-2025] [MO: Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 12 WAP 2024 : Appellee : Appeal from the Order of the : Superior Court entered July 17, : 2023, at No. 619 WDA 2022, v. : affirming the Judgment of : Sentence of the Court of : Common Pleas of Allegheny JAMAR FOSTER, : County entered January 5, 2022, : at No. CP-02-CR-0013992-2019.

Appellant : : ARGUED: April 9, 2025

CONCURRING OPINION

JUSTICE MUNDY DECIDED: MAY 18, 2026 I join the Majority’s holding that “the totality of the circumstances at the time of appellant’s investigative detention created reasonable suspicion justifying the stop.”

Majority Opinion, at 2. I write separately to express my disagreement with the Majority’s criticism of the high crime area factor, which was briefly addressed by the panel below when discerning whether the seizure was supported by reasonable suspicion. In particular, the intermediate court agreed with the Commonwealth that the instant matter was akin to Commonwealth v. Raglin, 178 A.3d 868 (Pa. Super. 2018), where the court found that the facts presented, including the occurrence of the events in a high-crime area, supported a finding of reasonable suspicion that Raglin had been involved in the Shot Spotter-detected shooting. See Commonwealth v. Foster, 2023 WL 4557061, at *7 (Pa. Super. 2023). In my view, the Majority’s rejection of the high crime area designation cited by the Superior Court in passing is arguably unnecessary, given that in this case, there was sufficient reasonable suspicion to justify the stop. In fact, not only did appellant not probe the high crime area designation below, as noted infra, he conceded that the seizure took place in a high crime area. Despite this, the Majority goes as far as to declare that the evidence introduced regarding this factor was “so substantively and temporally vague” that it is “compelled to conclude a factual finding of a high-crime area is not ‘supported by the record.’” Majority Opinion at 15-16. I cannot agree.

At trial, when asked if Manchester, the Pittsburgh neighborhood where the encounter occurred, was a “high crime area[,]” Officer Powers answered in the affirmative, testifying that from personal experience, this specific section had its “hot spots” for crime.

See N.T., 10/1/20, 8-9. Importantly, this testimony was based on personal knowledge, as Officer Powers testified that he had been a City of Pittsburgh police officer for several years and, at the time, was assigned to the zone where the incident occurred. Id. at 3-4.

As plainly acknowledged in Commonwealth v. Lewis, 343 A.3d 1016 (Pa. 2025): [A]n officer observing a hand-to-hand transaction on a street corner will naturally be more suspicious if he knows the corner is a hotspot for heroin sales than if the corner has no meaningful history of drug trafficking. … It would be simply illogical to expect officers to ignore those details, or to conclude that an officer’s experience regarding them is not a relevant factor informing reasonable suspicion.

Id. at 1030-31 (internal citations and quotation marks omitted). 1 Indeed, while “certain evidence may be especially helpful to suppression courts in determining whether an area While our decision in this case may be instructive for future prosecutions, the parties and reviewing court in this case did not have the benefit of Lewis, which was only recently decided, and provided clarity with regards to this reasonable suspicion factor.

In any event, I disagree with the Majority’s suggestion that Officer Power’s testimony is akin to the “vague remark” that was purportedly rejected by this Court in Lewis. In that case, the officer “testified that the ‘whole police service area” was “very well known for the high-crime rate we’ve had[,]’ but gave no other relevant specifics” concerning the area at the time the incident occurred. Lewis, 343 A.3d at 1037. See also id. at 1023 (noting that the officer also “specifically mentioned there had been one homicide and multiple carjackings within [the area] in the month preceding the (continued…) [J-22-2025] [MO: Dougherty, J.] - 2 is high in crime[,] . . . these factors are discretionary, not mandatory, and it is ultimately up to suppression courts to determine if the Commonwealth has met its burden of proof.”

Id. at 1036. As the officer’s statements in this case were not based on mere conjecture, they were, in my view, sufficient to establish that the area was a high-crime area.

This notwithstanding, assuming arguendo that the officer’s testimony fell short in establishing that the area is known to be high in crime, appellant himself admitted that the seizure took place in a high crime area. 2 See Appellant’s Brief to the Superior Court, at (“[I]n a high crime area, that is urban in nature, with houses all along the block where suppression hearing” (emphasis added)). By contrast, in the case sub judice, Officer Powers testified about the prevalence of crime in the specific section of Pittsburgh where the encounter took place, based on his personal experience as patrol officer in the area.

See N.T., 10/1/20, 3-4, 8-9.

This aside, while we observed in Lewis that the officer’s statement “is precisely the type of testimony suppression courts should be hesitant to accept[,]” see Lewis, 343 A.3d at 1037 (emphasis added), we stressed that it is within the “discretion of suppression courts to determine whether the Commonwealth has met its burden” of proving an area “is, in fact, high in crime.” Id. at 1040. At the same time, we made clear that “[i]f the defense believes a claimed high crime area designation is overbroad or outdated, it is free to probe that issue on cross-examination.” Id. at 1036 n.12. As indicated above, appellant chose not to probe this issue.

2 In her dissenting opinion, Justice Donohue seemingly acknowledges this admission, see Dissenting Opinion at 5, n.4, but nevertheless finds the “high-crime nature of the neighborhood” to be “irrelevant to our analysis” on the basis that Officer Powers “never explained the relevance of such a fact to his suspicion that [appellant] was involved in criminal activity.” Id. I disagree. At this juncture, we are tasked with discerning whether reasonable suspicion justified appellant’s seizure. As articulated supra, the officer’s knowledge of the area’s high-crime nature, coupled with the surrounding factors, including the Shotspotter alerts, was pertinent in determining reasonable suspicion for the stop.

Indeed, “this Court has long recognized a suspect’s presence in a high crime area as a relevant factor in assessing reasonable suspicion.” Lewis, 343 A.3d at 1029. This is because “officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). See also Commonwealth v. Hicks, 208 A.3d 916, 951 (Pa. 2019) (explaining that the officer’s description of the area of the seizure as “high crime” could “serve as [a] relevant contextual consideration[] in a totality of the circumstances inquiry”).

[J-22-2025] [MO: Dougherty, J.] - 3 police responded, the location of the ShotSpotter’s alert was not reliable enough in and of itself to justify such immediate detention absent further corroboration”); id. at 60 (“Further, this interaction occurred in a high crime residential area with multiple houses nearby, . . . ”). See also Appellant’s Brief at 32 (“[E]vidence was entered into the record in [this] case that indicated that while Manchester is a high crime area, there are houses nearby indicating a residential component”); id. at 33 (“[G]iven the high crime nature of the area . . .”); id. at 38 (“No corroborative facts existed when [appellant] was seized which indicate he was engaged in criminal activity, save for the fact that he was present in close spatial and temporal proximity to a gun shot in a high crime area at night”). Considering this concession, I cannot join the Majority’s rejection of this factor. Accordingly, I respectfully concur.

[J-22-2025] [MO: Dougherty, J.] - 4

[J-22-2025] [MO: Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 12 WAP 2024 : Appellee : Appeal from the Order of the : Superior Court entered July 17, : 2023, at No. 619 WDA 2022, v. : affirming the Judgment of Sentence : of the Court of Common Pleas of : Allegheny County entered January JAMAR FOSTER, : 5, 2022, at No. CP-02-CR-0013992- : 2019 Appellant : : ARGUED: April 9, 2025

DISSENTING OPINION

JUSTICE DONOHUE DECIDED: MAY 18, 2026 This Court decided to answer the question of whether “the Superior Court erred in affording too much weight” to Jamar Foster’s “temporal and spatial proximity to a ShotSpotter alert in assessing whether reasonable suspicion existed to support a Terry[1] stop[,]” a matter implicating the impact of an emerging technology on our search and seizure jurisprudence. Commonwealth v. Foster, 316 A.3d 619 (Pa. 2024) (per curiam).

The Majority avoids that important question by treating Foster’s temporal and spatial proximity to the ShotSpotter alert as but one of several factors supporting the trial court’s conclusion that police possessed reasonable suspicion to detain him. Consequently, the error review engaged in by the Majority does little if anything to aid the bench and bar in resolving future cases involving ShotSpotter. Worse, the Majority muddles the reasonable suspicion standard with leaps of logic unjustified by the record before us. With

At approximately 2 a.m. on a September morning in 2019, ShotSpotter indicated possible gunfire near 1439 Hoffman Street in the Manchester neighborhood of Pittsburgh’s North Side, a population-dense residential neighborhood. N.T., 10/1/2020, at 4-5. On his way to investigate, Pittsburgh Police Officer Nathan Powers received a second indication from ShotSpotter of additional shots detected at the same location. Id. at 6. No more than 15 seconds after the second ShotSpotter notification, Officer Powers observed a black sedan near 1439 Hoffman Street, parked against the flow of traffic with its headlights on. Id. Foster was initially seated in the driver’s seat, and the passenger seat was occupied by Tiffany Towns. Id. at 7-8. Officer Powers did not observe any other people on the block at that time. Id. at 6-7. He activated his emergency lights after he saw Foster exit his vehicle and walk toward a house. 2 Officer Powers also observed that

Q. Okay.

A. When I turned down the street and turned on the lights, he was walking away. (continued…) [J-22-2025] [MO: Dougherty, J.] - 2 Towns was “moving around in the car trying to grab things, grab, like, her purse.” Id. at 8. After bringing his vehicle to a stop across the street from and facing Foster’s vehicle, Officer Powers ordered Foster to stop and return to the street. Id. at 7.

The Majority determined that Foster was subject to a Terry Stop when Officer Powers ordered him to stop. Majority Op. at 13-14. I agree only insofar as the detention could not have occurred any later. 3 It has long been the law in Pennsylvania that when a police officer verbally orders a citizen to stop moving, a constitutionally significant event has occurred that triggers scrutiny under the Fourth Amendment. Commonwealth v. Jones, 378 A.2d 835, 839 (Pa. 1977) (“If a citizen approached by a police officer is ordered to stop or is physically restrained, obviously a ‘stop’ occurs.”). With that

Q. So he was walking away as you are making the right-hand turn, and you are leaning to see the vehicle sitting where it was?

A. Correct.

N.T., 10/1/2020, at 14 (emphasis added).

The Majority defends its version of the order of events by stating that there is a “conflict in the testimony” that must be “resolved in the Commonwealth’s favor as the prevailing party at the suppression hearing[.]” Majority Op. at 13 n.9. The only conflict here is between Officer Powers’ unambiguous answer during cross-examination—that Foster began walking away before the emergency lights were activated—and an inference drawn solely from Officer Powers’ earlier vague testimony.

This was not a situation where two witnesses came to different conclusions about the same event, nor where a witness gave two incompatible answers to the same question that remained unresolved on the record. Here, Officer Powers’ initial testimony was less than clear but his subsequent testimony fully resolved any ambiguity. When redirect examination occurred moments later, the assistant district attorney did not revisit the order of events. See N.T., 10/1/2020, at 20-21.

[J-22-2025] [MO: Dougherty, J.] - 3 established, I turn to examine each of the factors cited by the Majority to support its determination that Officer Powers possessed reasonable suspicion to conduct that stop.

“In order to demonstrate reasonable suspicion, the police officer must be able to point to specific and articulable facts and reasonable inferences drawn from those facts in light of the officer’s experience.” Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999). We assess those facts and reasonable inferences derived therefrom holistically such that otherwise innocent-appearing facts may justify temporary detention under the totality of the circumstances. Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004).

When assessing the reasonableness of an officer’s suspicion of criminal activity under the totality-of-the-circumstances, we remain cognizant that both our state and federal constitutions demand that the suspicion is both reasonably derived from articulable facts and particularized to the person seized. See id. (“A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct.”) (citing Cook, 735 A.2d at 676) (emphasis added); accord United States v. Cortez, 449 U.S. 411, 417–18 (1981). As the Cortez Court explained, “an assessment of the whole picture must yield a particularized suspicion” to justify a stop because requiring such specificity is the “central teaching” of the High Court’s Fourth Amendment jurisprudence. Cortez, 449 U.S. at 418 (citing Terry, 392 U.S. at 21 n.18).

Aside from circumstances related to the ShotSpotter reports, the Majority first considered, but ultimately rejected, the purportedly high-crime nature of the location where Foster was seized. Majority Op. at 15-16. In the context of this Fourth Amendment challenge, I agree with that aspect of the Majority’s analysis. As I have consistently maintained, “the characteristic of a neighborhood as being … disproportionately crime- ridden” is a fact that “the Commonwealth bears the burden of proving” through “objective

[J-22-2025] [MO: Dougherty, J.] - 4 evidence.” Commonwealth v. Lewis, 343 A.3d 1016, 1059 (Pa. 2025) (Donohue, J., dissenting) (quoting Commonwealth v. Jackson, 302 A.3d 737, 757 (Pa. 2023) (Donohue, J., opinion in support of reversal)). Furthermore, even if the Commonwealth can supply proof that a specific area is disproportionally affected by a particular type of crime, the Commonwealth must also demonstrate that such evidence “is relevant to the officer’s suspicions.” Id. at 758. Here, as explained by the Majority, Officer Powers’ “bare testimony claiming the area was a ‘hot spot’ at some undefined time ‘in the past’ does not equate to evidence the area was a high-crime area at the time of the seizure.” Majority Op. at 15. I add only that there was also no testimony demonstrating how the character of the neighborhood buttressed the officer’s suspicion that Foster was involved in criminal activity. 4 Thus, the Majority correctly disregarded the purportedly high-crime nature of the area in which Foster was detained.

Albeit with negligible analysis, the Majority next considers two factors unrelated to ShotSpotter to support a finding of reasonable suspicion to stop Foster: Towns’ “furtive movements in the front seat of the car[,]” and Foster’s walking away from Officer Powers.

Majority Op. at 18-19. Towns’ movements would implicate Towns first and foremost, and this case does not concern whether Officer Powers possessed reasonable suspicion to detain her. However, there is no need to struggle with whether Towns’ behavior contributed to reasonable suspicion to detain Foster because there was simply nothing objectively suspicious about her behavior to consider. Officer Powers never testified that Towns had engaged in furtive movements, nor did he mention her behavior as a basis for In her concurring opinion, Justice Mundy contends that Officer Powers’ testimony was “sufficient to establish that the area was a high-crime area” and that in any event, Foster “admitted that the seizure took place in a high[-]crime area.” Concurring Op. at 3.

Assuming for the sake of argument that Justice Mundy is correct, Officer Powers never explained the relevance of such a fact to his suspicion that Foster was involved in criminal activity. Thus, the purportedly high-crime nature of the neighborhood remains irrelevant to our analysis regardless of Foster’s admission.

[J-22-2025] [MO: Dougherty, J.] - 5 his suspicion of Foster. Tellingly, the suppression court never cited Towns’ behavior as a contributing factor.

A “furtive gesture” is a “surreptitious movement, esp. one seeming to be hiding something, seen by a police officer and providing reasonable suspicion to detain or search.” Furtive Gesture, BLACK'S LAW DICTIONARY (12th ed. 2024); see also Furtive, WEBSTER’S II DICTIONARY, 292 (3d ed. 2005) (“1. Stealthy : surreptitious. 2. Shifty : sly.”).

As Black’s Law Dictionary hints, “furtive” has become a term of art (or, less charitably, magic words) used to describe an attempt to secrete or obscure possible evidence of a crime during an interaction with police. Critically, Officer Powers never used the term “furtive” during his testimony, nor did he describe furtive conduct. Instead, Officer Powers matter-of-factly stated: “[T]here was a female passenger in the front passenger seat. She looked like she was moving around in the car trying to grab things, grab, like, her purse.”

N.T., 10/1/2020, at 8. Officer Powers’ testimony did not suggest an attempt to hide or obscure evidence. Furthermore, grabbing a purse before departing a vehicle is innocuous; it is neither stealthy, surreptitious, shifty, nor sly. Nor can we ignore that Officer Powers never articulated that Towns’ movements had elevated his suspicion of Foster.

The record shows that the prosecutor first added a “furtive” connotation to Officer Powers’ testimony during argument before the suppression court. Id. at 27 (“[Officer Powers] also stated that one of the individuals in the car was rustling around and putting something into her purse.”) (emphasis added). The arguments of counsel are not facts and, as the record plainly shows, Officer Powers never said that Towns put anything into her purse, and the trial court made no mention of Towns’ movements at all in denying

[J-22-2025] [MO: Dougherty, J.] - 6 suppression. 5 Likewise, the Superior Court did not mention Towns’ behavior as a contributing factor in its reasonable suspicion analysis. Commonwealth v. Foster, 619 WDA 2022, 2023 WL 4557061, at *3-*7 (Pa. Super. July 17, 2023) (non-precedential decision). For these reasons, I disagree with the Majority’s reliance on Towns’ behavior to justify Foster’s detention. 6 There is nothing suspicious about a woman grabbing for her purse as she prepares to exit a car. 7

However, the transcript of that proceeding reveals no reliance by Judge Cashman on Towns’ movements as a basis to deny Foster’s suppression motion. See N.T., 10/1/2020, at 28-30.

Nonetheless, it continues to maintain that it was suspicious behavior despite the facts that 1) Officer Powers never described it as such, and 2) Officer Powers never articulated that it contributed to his decision to detain Foster.

Flight from police cannot alone demonstrate reasonable suspicion. Cook, 735 A.2d at 677 (citing Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996)). However, it may contribute with other factors to justify a stop because “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). In Wardlow, the detainee demonstrated nervous and evasive behavior when he engaged in “[h]eadlong flight,” which the High Court described as “the consummate act of evasion” in that, although not “necessarily indicative of wrongdoing,” it is “certainly suggestive of such.” Id. Here, Officer Powers merely observed Foster exiting his parked car and walking toward a nearby residence. It strains credulity to treat such behavior as akin to flight, much less the “headlong” flight described in Wardlow. 8 Foster was doing precisely what we would expect a driver to do after he parks his car in front of a residential building at 2

The Majority also disregards Officer Powers’ actual observations to come to its own conclusion that Towns was engaged in “furtive” conduct. It justifies its conclusion under the auspices of analyzing the objective reasonableness of Officer Powers’ decision to detain Foster irrespective of his subjective reason for doing so. See MO at 18 n.17.

However, the Majority is really engaging in appellate factfinding from a cold record as its finding that Towns engaged in evasive behavior is conspicuously absent from the trial court’s Pa.R.A.P. 1925(a) opinion. Indeed, Judge Howsie made no mention of Towns’ behavior at all in explaining why suppression was denied. See Trial Court Opinion, 7/19/2022, at 1-2, 4-5. Moreover, Judge Cashman made no mention of Towns’ movements when he reached his decision during the suppression hearing. See N.T., 10/1/2020, at 24-30. The reason for those omissions is simple: Officer Powers did not observe furtive movements by Towns.

[J-22-2025] [MO: Dougherty, J.] - 8 a.m., and there was no evidence tending to show that Foster walked away in response to the arrival of police. It was only after Officer Powers ordered Foster to stop that Foster engaged in behavior fairly described as evasive. Compare N.T., 10/1/2020, at 7 (“I observed a black male leave the driver's seat and walk towards a private residence.

That's when I ordered the male to return to the street so we could conduct an investigation.”), with id. at 8 (“The defendant refused to comply with the officers and continued to walk away, at which point we feared that he was armed, having the ShotSpotter notification, and then walking away. We drew our guns and ordered him at gunpoint, at which point he finally got down on the ground, and we had to forcefully handcuff him to get him under compliance.”). Because Foster’s only “evasive” behavior occurred after he was ordered to stop, it cannot be used to retroactively justify the stop that preceded it. Thus, I disagree with the Majority that Foster engaged in any type of evasive behavior prior to Officer Powers’ order to stop. 9 For these reasons, I believe the only circumstances relevant to this Court’s reasonable suspicion analysis were Foster’s temporal and spatial proximity to a ShotSpotter alert. The posture of this case does not allow us to examine the accuracy

[J-22-2025] [MO: Dougherty, J.] - 9 and reliability of ShotSpotter as Foster and Amici would like us to do, 10 as the question presented for our review does not clearly encompass it and there was no evidence presented at the suppression hearing regarding ShotSpotter’s reliability in detecting gunshots. Thus, I believe that in considering whether Officer Power’s testimony established reasonable suspicion to detain Foster, we must assume that ShotSpotter twice detected actual gunshots. 11 I also accept the Majority’s assumption that the occurrence of gunshots in the circumstances of this case was fairly “suggestive of criminal activity.” Majority Op. at 16-17. Thus, from my perspective, this case is not about whether Officer Powers reasonably suspected that a crime occurred (he did), but instead it is about whether the officer had a reasonable and particularized suspicion that established a nexus between Foster and the suspected crime. I believe the Commonwealth failed to establish that nexus on this record.

United States v. Williams, 483 Fed.Appx. 21, 25 (6th Cir. 2012) (citations, quotation marks, and brackets omitted). Here, by putting aside questions of ShotSpotter’s accuracy or reliability in detecting gunshots, we can focus our attention on providing a framework of analysis for examining evidence pertaining to an individual’s spatial and temporal proximity to a ShotSpotter alert.

[J-22-2025] [MO: Dougherty, J.] - 10 It is logical that such a nexus might be established when an individual is found in the immediate spatial and temporal proximity to the known location of a gunshot, which is the fundamental inferential premise of the Majority’s Opinion. 12 The direct corollary inference that flows from that logic is that the nexus becomes increasingly tenuous over time and distance from the gunshot’s location. I add that the weight to be afforded to spatial and temporal proximity may also be dependent on the character of the space in which an individual is found. For example, an individual found alone in the middle of field soon after a gunshot was fired there is very likely to have fired it. By contrast, if a shot is fired in the middle of a densely crowded space like a concert venue, it would be far more unlikely that any specific individual was culpable based solely on spatial and temporal proximity to the shot. With these principles in mind, I believe the Majority substantially overstates Foster’s spatial and temporal proximity to the ShotSpotter alerts.

First, the Majority embellishes the temporal nexus when it states that Officer Powers “promptly arrived on the scene within seconds of the second alert[.]” Majority Op. at 18. That is technically true, assuming Officer Powers’ time estimate was accurate.

See N.T., 10/1/2020, at 4-5 (testifying that he arrived at the scene ten to fifteen seconds after the second ShotSpotter notification); but see id. at 11-12 (testifying during cross examination, in response to virtually the same question of how much time elapsed between the second ShotSpotter alert and his arrival on the scene, that he “would have to refer to [his] body camera or dash cam” to provide an accurate estimate). However, the Majority’s statement of that fact obscures that ShotSpotter notifications do not occur immediately after the system detects a shot, because it takes “approximately 30 to 45 seconds” for ShotSpotter to “determine if [the sound] was … a gunshot” or some similar The Majority asserts that Foster and “Towns were the only individuals present at the precise location of the alerts … immediately on the heels of the gunshots[.]” Majority Op. at 17 (emphasis added).

[J-22-2025] [MO: Dougherty, J.] - 11 noise like a firework or a back-firing car. Id. at 5. Thus, Officer Powers observed Foster’s vehicle at least forty to sixty seconds after the second round of shots were fired, but perhaps longer given that he later waffled on the time that elapsed from the second notification to when he first observed Foster and Towns. Forty to sixty seconds is plenty of time to flee the scene by foot and certainly by vehicle, and that is the minimum time that elapsed on this record. 13 That delay also provided plenty of time for a vehicle to arrive at the scene after the shots were fired. 14 Second, the Majority also overstates Foster’s spatial proximity to the gunshots.

Officer Powers testified that ShotSpotter specified 1439 Hoffman Street as the location of the gunshots. But what does that mean? The Majority seems to presume the location of the shots corresponded with the front of the property line where it meets the street. See Majority Op. at 17 (stating that Foster and Towns were at the “precise location” of the ShotSpotter alerts). But the record does not support that assumption. Officer Powers admitted that, in his experience, shots are not always fired at the precise location given by ShotSpotter. N.T., 10/1/2020, at 6 (stating that ShotSpotter is accurate within 80-100 The Majority maintains that sixty seconds “or less is undoubtedly a very prompt response time minimizing the possibility of the culprit’s flight.” MO at 18 n.16. I do not question that sixty seconds is a commendably short response time for police. However, the salient point is that sixty seconds is also ample time to depart from the scene of a crime by vehicle or by foot, with common sense dictating that criminals are unlikely to dawdle about for up to a minute after firing shots on a public street. The Majority also fails to explain why it insists on embellishing the record by claiming that Officer Powers arrived “within seconds of the second alert[,]” see id. at 18, when Officer Powers expressed uncertainty during cross-examination regarding his actual response time. See N.T., 10/1/2020, at 11 (“Q. How long did it take you to get from where you were when you received the notification to the address of the second set of ShotSpotters? A. I would have to refer to my body camera or dash cam for that.”). The Commonwealth never presented Officer Powers’ body cam footage into evidence at the suppression hearing.

[J-22-2025] [MO: Dougherty, J.] - 12 feet). Thus, ShotSpotter may be off by over 30 yards when it returns an address. But where are those yards measured from? From the center point of the property at 1439 Hoffman Street? Or from the front of the property on Hoffman Street? Or from the back side of the property that intersects with different street or alley altogether?

This is not mere speculation on my part. Officer Powers admitted as much: Q. I believe you said on direct that it’s not always at the specific location you respond to. Does that mean that on occasion when you respond to ShotSpotter there was not, in fact, activity at the location that you respond to?

A. What I am referring to is that, for instance, this address is 1439, it may be at 1440 instead of 1439.

Q. Is it possible that ShotSpotter, that there may have been shots fired at the block next to 1439 Hoffman Street?

A. You would have to talk to a technician about the accuracy of that.

Q. So the end result then is you think that the ShotSpotter came from 1439 Hoffman Street, but at the end of the day you can’t say exactly where the shots fired occurred?

A. We investigate the area around the address.

Q. Right.

A. So we use that as an investigatory tool and respond there.

Q. And that’s when you start an investigation?

A. Correct.

N.T., 10/1/2020, at 10-11 (emphasis added).

Thus, Officer Powers candidly admitted that he could not dispel the possibility that shots were fired on a different block altogether, which greatly diminishes the weight

[J-22-2025] [MO: Dougherty, J.] - 13 that should be afforded to his discovery of Foster in front of 1439 Hoffman Street. 15 It also diminishes the impact of his testimony regarding the absence of other people or vehicles at 1439 Hoffman Street, particularly since Officer Powers did not testify to the absence of people or vehicles on neighboring blocks.

These limitations of ShotSpotter’s locational accuracy are particularly relevant given the nature of the setting in which these events unfolded—a densely populated urban neighborhood. Numerous other houses fell within range of where Officer Powers admitted that shots could have been fired, given his knowledge and experience with ShotSpotter. Furthermore, not only did those other homes provide a potential source for the gunshots, they also provided cover for any fleeing shooter even assuming the shots were accurately detected at 1439 Hoffman Street.

In sum, I believe the Majority erroneously relies on the purported suspiciousness of Towns’ and Foster’s observed behavior that is directly at odds with Officer Powers’ actual testimony. With those unsupported inferences set aside, the only evidence supporting Foster’s temporary detention was that related to his spatial and temporal proximity to the location provided to Officer Powers by ShotSpotter. As detailed above, that evidence was far less compelling than suggested by the Majority’s cursory analysis of an underwhelming factual record. Critically, the evidence fell short of providing adequate individualized suspicion that Foster was responsible for the gunshots detected by ShotSpotter. For these reasons, I would reverse the Superior Court’s decision that affirmed the denial of Foster’s suppression motion.

[J-22-2025] [MO: Dougherty, J.] - 14 I respectfully dissent.

[J-22-2025] [MO: Dougherty, J.] - 15