Since 2019, the rule in Pennsylvania has been that a police officer cannot stop someone just because the officer sees that the person is carrying a gun. Carrying a firearm is legal for a great many people, and conduct that is usually legal cannot, by itself, give an officer reason to suspect a crime. That is the holding of Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019).
Earlier this year, the Pennsylvania Supreme Court decided Commonwealth v. Hawkins-Davenport, 352 A.3d 92 (Pa. 2026), and held that an officer who sees a gun in plain view during a lawful traffic stop may take it out of the car for safety before finding out whether the driver has a license to carry it.
Now the Superior Court has decided a case that sits between those two. In Commonwealth v. Smith, 2026 PA Super 240 (Pa. Super. Oct. 27, 2026), officers on patrol saw the outline of a gun in a pedestrian’s waistband. There was no traffic stop and no report of a crime. The officers stopped and frisked him, found a gun with a scratched-off serial number, and the court upheld the search. President Judge Emeritus Ford Elliott wrote the opinion for a panel that also included President Judge Lazarus and Judge Murray.
The court applied existing law. What decided the case was the order in which things happened on the sidewalk, and the suppression court’s decision to believe the officer’s account of that order.
The Three Kinds of Police Encounters, and the Separate Rule for a Frisk
Pennsylvania courts sort interactions between police and citizens into three categories. The first is a mere encounter, such as an officer asking a question on the street. It requires no suspicion at all, because the person is free to ignore the officer and keep walking. The second is an investigative detention, where the officer stops the person and the person is not free to leave. That requires reasonable suspicion, meaning specific facts that would lead an officer to suspect that criminal activity is happening. It is a lower standard than probable cause. The third is an arrest, which requires probable cause.
A frisk is a separate step. Under Terry v. Ohio, 392 U.S. 1 (1968), an officer who has lawfully stopped someone may pat down the person’s outer clothing for weapons only if the officer reasonably believes the person is armed and dangerous. So in a gun case, there are two questions. Did the officer have a lawful reason to stop the person? And, once stopped, did the officer have a lawful reason to frisk him?
Hicks: A Gun Alone Is Not Enough to Stop Someone
In Hicks, a city surveillance camera operator in Allentown watched a man at a gas station around 2:30 in the morning show a handgun to another person, put it in his waistband, and cover it with his shirt. Officers responded and seized him. It turned out Michael Hicks had a valid license to carry.
For years before that, the Superior Court had followed a rule from Commonwealth v. Robinson, 600 A.2d 957 (Pa. Super. 1991), that seeing someone carry a concealed gun in public was enough, standing alone, to stop him and check whether he had a license. The Supreme Court rejected that rule. Justice Wecht’s majority opinion held that the mere possession of a firearm, where it lawfully may be carried, is not by itself suggestive of criminal activity. The Commonwealth also pointed to the late hour and to testimony that the gas station was in a high-crime neighborhood. The Court said those facts can matter as context, but they did not supply reasonable suspicion on that record.
Two limits on Hicks matter for what came next. First, the Court did not say a gun can never be suspicious. It said a gun alone is not enough, and that an officer needs something more that points toward illegality. Second, the Court decided only whether the stop was lawful. It expressly declined to say whether an officer who has already lawfully detained someone may treat that person’s possession of a gun as automatic permission to frisk him.
Hawkins-Davenport: A Gun in Plain View During a Traffic Stop
In Hawkins-Davenport, decided February 18, 2026, Philadelphia officers stopped an SUV for a broken brake light. As one officer reached the passenger window, he saw a gun lying on the front passenger seat, within the driver’s reach. He reached in and took it, asking the driver at about the same time whether he had a license to carry. The driver said no. The suppression court threw out the gun, reasoning that under Hicks the officers had no reason to think the driver was doing anything illegal, and that the driver was cooperative and never reached for the gun.
The Supreme Court unanimously disagreed. Justice Mundy’s opinion relied heavily on Pennsylvania v. Mimms, 434 U.S. 106 (1977), where the United States Supreme Court held that an officer who lawfully stopped a driver and then saw a bulge in his jacket could frisk him. The Court held that when an officer sees a firearm in plain view and within the driver’s reach during a lawful traffic stop, the officer may remove it before finding out whether the driver has a license, so the stop can proceed safely. The Court said firearms are dangerous by their nature whether or not they are legally possessed, and that the Constitution does not require an officer to gamble with his life.
On Hicks, the Court drew a clear line. In Hicks, the gun was the only reason for the encounter. In Hawkins-Davenport, the officers stopped the car for a traffic violation and did not know about the gun until they reached the window. The traffic violation, not the gun, gave rise to the stop. That difference, the Court said, put the case outside Hicks.
That distinction is the problem for the Commonwealth in a case like Smith. Andre Smith was not in a car, and he was not stopped for a traffic violation. The only thing that drew the officers’ attention to him was the gun. That is the Hicks setting, so the Commonwealth needed something more than the gun.
What Happened on Lehigh Avenue
On an April evening in 2024, three Philadelphia officers were patrolling in an unmarked car in the 22nd District. They were in uniform. The block was lit by streetlights. Officer Timothy Carroll, sitting in the back seat, saw Andre Smith walking toward them and saw what he recognized as the outline of a gun in Smith’s right front waistband. He did not see the metal of the gun, only its shape under the clothing. He testified that he recognized it from his training, from twelve years of responding to gun cases in that district, and from carrying a gun himself every day.
The officers made a U-turn. As they did, Officer Carroll saw Smith look toward them and stiffen his right arm against the front of his right side while his left arm kept swinging normally. The officers made a second U-turn, pulled into the bike lane next to Smith, and, without getting out, one officer asked whether he had a license to carry. Smith answered that he didn’t have anything. Two officers then got out and asked again. He gave the same answer. The officers then ran a short distance to catch up to him, stopped him, and frisked the spot where the outline had been. They recovered a 9mm Smith & Wesson with the serial number scratched off.
Two other details from the hearing made it into the suppression court’s findings. On body camera video, an officer can be heard telling Smith that the gun could be seen “from a mile away.” And during the hearing itself, defense counsel asked Officer Carroll to stand up. He was wearing his own gun under his jacket, and the judge noted on the record that the outline of a firearm was obvious.
Smith had a prior conviction for aggravated assault, so he could not legally possess a gun at all. After the suppression motion was denied, he proceeded to a stipulated bench trial and was convicted of possession by a prohibited person, possession of a firearm with an altered manufacturer’s number, carrying without a license, and carrying a firearm on the streets of Philadelphia.
When the Encounter Became a Seizure
The court first had to decide when Smith was seized, because reasonable suspicion is measured at that moment. Information police learn after a seizure begins cannot be used to justify it. Commonwealth v. Mackey, 177 A.3d 221 (Pa. Super. 2017).
Smith did not dispute that the first question, asked from inside the car, was a mere encounter. The officers had no lights or siren on, did not block his path, and stayed in the car. The court relied on Commonwealth v. Joyner, 348 A.3d 230 (Pa. Super. 2025), which held that officers asking “do you have a gun” from their car on a public street, without lights or sirens, was a mere encounter.
Smith argued he was seized when the officers got out, came up from behind him, and began the pat-down. The court rejected the idea that simply getting out of the car behind him was a seizure, noting he offered no authority for that position, and pointed out that the officers asked him the license question a second time after getting out. The seizure happened when the officers ran to catch up, blocked his path, and frisked him. So the question was what the officers knew at that point.
What Separated Smith From Hicks
By the time of the seizure, the officers knew three things. They had seen the outline of a gun. They had seen Smith stiffen his arm against it when he noticed the patrol car. And they had asked him whether he had a license and heard him say, twice, that he didn’t have anything.
The first fact, on its own, is Hicks. The court’s holding rested on the other two.
The suppression court found that “I don’t have anything” could be read two ways, and the Superior Court agreed that either reading supported reasonable suspicion. If Smith meant he had no gun, he was lying to officers who could see one. The court relied on its earlier decision in Commonwealth v. Toliver, 2026 PA Super 63, 355 A.3d 920 (Pa. Super. 2026), which held that when a person stopped in a car is caught in a lie about whether he has a gun, the lie by itself is enough for reasonable suspicion. If instead Smith meant he had no license, then he was admitting to carrying a concealed gun without one. The court cited Commonwealth v. Saunders, 326 A.3d 888 (Pa. 2024), where an officer saw a gun under a seat during a car stop and the driver admitted he had no license, and the Supreme Court held that the circumstances, which also included a high-crime area and an attempt to hide the gun, amounted to at least probable cause.
The stiffened arm was the second fact. The court treated it as an attempt to hide the gun from uniformed officers, which added direct support for the belief that Smith’s possession was unlawful. It cited earlier cases finding reasonable suspicion on similar facts, including Commonwealth v. Foglia, 979 A.2d 357 (Pa. Super. 2009) (en banc), where the defendant patted his waistband, and Commonwealth v. Rice, 304 A.3d 1255 (Pa. Super. 2023), where an officer saw an L-shaped bulge in a high-crime area and the person walked away and then ran.
Put the two cases side by side and the difference is the sequence. In Hicks, the officers seized the man first, on the strength of the gun alone. In Smith, the officers asked questions while Smith was still free to walk away, and the answers, along with his effort to hide the gun, gave them the additional facts Hicks requires before they ever stopped him.
The Facts the Defense Tried to Change on Appeal
Smith’s appellate argument depended on a different order of events. His brief said he did not respond to the first question from the car, and that he stiffened his arm only when the officers were already on him and starting the frisk. On that version, the officers seized him with nothing more than the gun outline, which is Hicks.
The court rejected the argument because of the standard of review. When the Commonwealth wins a suppression motion, an appellate court considers only the Commonwealth’s evidence and whatever defense evidence is uncontradicted, and it is bound by the suppression court’s findings if the record supports them. Officer Carroll testified that Smith answered the first question and that the arm stiffening happened before the officers ever stopped the car. The suppression court credited that testimony. Because the record supported those findings, the Superior Court was bound by them. The court said Smith’s argument left out a fact the suppression court specifically found and put the events in a different order than the testimony did, and that this was contrary to the standard of review.
The Frisk, and Where Hawkins-Davenport Fits
Smith also argued that even if the stop was lawful, the officers had no reason to believe he was dangerous, so the frisk was not. He read Hicks to mean that carrying a gun does not by itself suggest danger.
The court gave two answers. First, Smith had lied about the gun and tried to hide it, which distinguished Hicks on the facts. Second, Hicks addressed only whether a stop can be based on a gun. It did not address frisks, and it expressly left open whether an officer who has lawfully detained someone may frisk him because he has a gun. The court also cited Commonwealth v. Graham, 353 A.3d 225 (Pa. Super. 2026), for the point that Hicks turned on the validity of the initial detention.
With the stop lawful and the officers reasonably believing Smith was armed, the court held they could frisk him. It relied on Mimms and Foglia, and on Toliver‘s holding that a person who is armed and has lied to police about it has shown enough dangerousness to justify a frisk. And it quoted Hawkins-Davenport‘s statement that the constitutional protections against unreasonable searches do not require an officer to gamble with his life. The court held that officers who stop someone at night on reasonable suspicion that he is unlawfully carrying a gun may, for their safety, frisk the area where they believe the gun is.
The role Hawkins-Davenport played in Smith was limited. The Supreme Court in that case got around Hicks because the traffic violation, not the gun, justified the stop. Smith could not use that route, because there was no traffic violation. The Superior Court found the stop lawful on its own grounds, under Toliver and the arm stiffening, and used Hawkins-Davenport only at the second step, for the officer-safety principle that supports the frisk once a lawful detention is underway.
What the Sequence Means for Suppression Hearings
For defense lawyers, Smith shows that in a post-Hicks gun case, the suppression hearing is usually decided on timing. The questions that matter are when the person was first asked about a gun or a license, exactly what he said, when any movement toward the gun happened relative to that question, and when the encounter became a seizure. Those facts need to be pinned down through cross-examination and through the body camera footage, and the defense should ask the suppression court for specific findings on each one. If the court credits the officer’s sequence, there is little left to argue on appeal, because the appellate court is bound by those findings. Smith also confirms that Hawkins-Davenport does not supply the justification for a pedestrian stop. Where there was no traffic violation or other independent reason for the stop, the Commonwealth still has to show something beyond the gun.
For people who carry a gun, Smith shows how a short exchange with police on the sidewalk can decide whether a later search is upheld. When an officer asks questions without stopping someone, the law treats it as a mere encounter, and the person is not required to answer. But if the person does answer, and the answer is false or admits to carrying without a license, that answer can supply the legal justification for a stop and a frisk.