A blog of the Philadelphia Bar Association’s Criminal Justice Section


By Burt Rose

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In United States v. Shawn Lowe, Appellant 2015 WL 4032921 (July 2, 2015) , a Panel of the United States Court of Appeals for the Third Circuit reversed a ruling of Judge J. Curtis Joyner of the United States District Court for the Eastern District of Pennsylvania which had denied the Appellant’s motion to suppress physical evidence.

The Panel was composed of Judges McKee, Greenaway and Krause. The Appellant was represented by Robert Epstein, Esquire of the Federal Defender Office while the Government was represented by Robert Zauzmer, Assistant United States Attorney.

Lowe was convicted of having violated 18 U.S. C §922(g)(1) (illegally possessing a firearm as a convicted felon). Following a conditional guilty plea, he argued on appeal that Judge Joyner had erred in denying his suppression motion, on the ground that the police did not have a proper basis to conduct a stop and frisk.

On September 19, 2010 at 4:00 A.M., Philadelphia Police Officers received a radio call regarding a black male wearing a gray hoodie with a gun in his waistband in front of a certain address in a high crime area. However, the tip was anonymous. Police immediately drove to the location and saw the Defendant speaking with a female in front of her residence. Lowe was seen wearing a gray hoodie with his hands in his pockets. The officers did not see a firearm. As the officers approached, the Defendant took several steps backing away. Furthermore, the officers gave the Defendant multiple commands to raise his hands or take his hands out of his pockets but he did not initially comply.

The District Court concluded that Lowe’s failure to show his hands in response to the officers’ initial commands, along with the tip and the high crime location (where a shooting had occurred an hour earlier) provided reasonable suspicion to conduct the stop and frisk of the Appellant that disclosed the firearm.

Writing for the Panel, Judge McKee, ruled that the officers had made a sufficient show of authority from the moment they first approached Lowe as to constitute a seizure. A reasonable person in the position of the Defendant would not have felt free to decline the interaction or leave. Furthermore, Lowe submitted to that show of authority by remaining stationary and not fleeing, making threatening movements or gestures.

Judge McKee stated the fact that the Defendant acted startled and stepped back in the face of on-rushing, armed police officers does not undermine that the conclusion that he had submitted to the police officers’ authority. Finally, the Court of Appeals concluded that under these facts, the officers lacked reasonable suspicion at the moment of the seizure. Therefore, the evidence recovered as a result of the ensuing search of the Defendant should have been suppressed.


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