Opinion
No. 345 MDA 2006.
Filed: December 29, 2006.
Appeal from the Order Entered January 24, 2006 In the Court of Common Pleas of Cumberland County Criminal Division at No. CP 21 CR 2562-2005.
BEFORE: KLEIN, BENDER and McCAFFERY, JJ.
¶ 1 The Commonwealth appeals from the January 24, 2006 order granting the motion to suppress filed by the defendant, Terry E. Moyer. We affirm.
¶ 2 On June 28, 2005, at approximately 11:22 p.m., Pennsylvania State Police Corporal Jonathan Mays was on patrol with Trooper Elmer Hertzog in a marked police unit, both in full uniform. N.T. Omnibus Pretrial Motion Hearing, 1/23/06, at 6-7, 17. Corporal Mays observed Moyer's vehicle "weaving within its lane, back and forth," with a broken taillight. Id. at 7. He initiated a traffic stop, activated his emergency lights, and Moyer pulled over to the berm of the road. Id. Corporal Mays illuminated the interior of Moyer's vehicle and "saw a lot of movement between the driver and the passenger . . . [that] was focused down towards the floor boards and towards the passenger side of the vehicle." Id. at 8.
¶ 3 Corporal Mays approached Moyer, who was the driver, and requested his license and registration. Id. at 9. Moyer complied. Id. Corporal Mays asked where Moyer was coming from and, although Moyer responded, Corporal Mays described Moyer as "evasive." Id. Corporal Mays returned to his vehicle and reported to Trooper Hertzog that Moyer was nervous, evasive, and his eyes were bloodshot. Id. at 10. After making a criminal history inquiry, Corporal Mays discovered that Moyer had a prior arrest for marijuana possession. Id. at 10, 24.
¶ 4 Corporal Mays returned to Moyer, asked him to exit the vehicle and proceed to the rear of the vehicle. Id. at 10. Moyer complied. Id. Corporal Mays issued Moyer a warning for the taillight violation. Id. Corporal Mays described Moyer as cooperative, quiet, and nonthreatening, but also "kind of swaying, still kind of nervous." Id. at 10, 14-15. Nevertheless, Corporal Mays told Moyer that he was free to leave. Id. at 10, 25. On his way back to the patrol car, Corporal Mays turned back around, called Moyer's name, reapproached Moyer's vehicle, and asked Moyer if he would mind answering a few more questions. Id. at 10-11, 26. Moyer stated that he did not mind, and returned to the rear of his vehicle. Id. at 11. Moyer testified that he felt he had no choice but to do as Corporal Mays requested. Id. at 51.
¶ 5 Corporal Mays informed Moyer that he ran a criminal history check and discovered the marijuana violation, and Moyer responded that "he was aware of that." Id. at 11. Pursuant to Corporal Mays's inquiries, Moyer denied having any controlled substance or paraphernalia either in his car or on his person. Id. Corporal Mays described what happened next:
So I asked him if I could check his vehicle to make sure that was the case. He told me that I could. I went back up to the vehicle and he had a passenger in the vehicle. I asked the passenger to step out. I left Mr. Moyer at the rear of the vehicle with Trooper Hertzog, and I don't know if it was so communicated to Trooper Hertzog, but, of course, I wanted him to keep an eye on these two guys while I am going to be preoccupied in the vehicle looking around the vehicle.
I started into the interior of the vehicle and either after I started for a second or prior to me starting, I gave Trooper Hertzog instructions that I asked him to check and make sure Mr. Moyer didn't have anything on his person.
As I went back into the vehicle to check, Trooper Hertzog called my name. I looked back out and he said that he had a crack pipe that Mr. Moyer gave to him, that he had a crack pipe that he retrieved off of Mr. Moyer.
I went back into the vehicle, searched the vehicle, the passenger's side door, I found another pipe that from my experience, it is one that has been used to ingest crack cocaine, it had the residue on it, it was a metal pipe. There were copper screens in the vehicle which you find they use in these pipes as a kind of filtration or to hold the substance.
After coming back out of the vehicle, Trooper Hertzog informed me through his conversation with Mr. Moyer that he had smoked within an hour of driving the vehicle.
Id. at 11-12. According to Trooper Hertzog, Corporal Mays asked Moyer if they could perform a pat down search and, while Corporal Mays was searching the car, Trooper Hertzog asked Moyer if he had anything dangerous like drugs, weapons, or needles on his person. Id. at 43.
Contrary to Trooper Hertzog's testimony, Moyer stated that Trooper Hertzog began patting him down without first asking his permission. Id. at 52-53. It was then that Moyer stated that he had a pipe in his pocket, and, according to Trooper Hertzog, Moyer handed him the pipe, whereas, according to Moyer, Trooper Hertzog removed the pipe from his pocket. Id. at 43, 53. As noted above, Trooper Hertzog, noticing that Moyer's eyes were dilated, red, and bloodshot, asked Moyer when he last smoked from the pipe, and Moyer said he had done so an hour ago, whereas Moyer testified that he stated three hours ago. Id. at 44, 53. Curiously, Trooper Hertzog testified that Moyer was still free to go, even though Corporal Mays was still searching the vehicle at the time. Id. at 44.
¶ 6 Moyer admitted that he owned the crack pipes that the officers recovered. Id. at 18. After making these inculpatory remarks, the officers arrested Moyer and transported him to the hospital for blood testing. Id. at 12, 32, 40. At no point was Moyer told that he did not have to consent to the search, and at no point was he advised of his Miranda rights until he was taken to the booking center where he signed a written Miranda waiver form. Id. at 34, 39, 56.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶ 7 The Commonwealth charged Moyer with possession of drug paraphernalia and DUI. Moyer filed an omnibus pretrial motion seeking suppression of inculpatory evidence. The trial court held a suppression hearing on January 23, 2006. Thereafter, the trial court entered an order indicating that Moyer's "motion is granted to the extent that evidence obtained by the Commonwealth following the return of [Moyer's] paperwork to him and solicitation that he respond to further questions is suppressed." Order, 1/26/06. The Commonwealth filed a timely notice of appeal on February 21, 2006.
¶ 8 The Commonwealth raises the following issue on appeal:
DID THE SUPPRESSION COURT ERR IN SUPPRESSING THE EVIDENCE CONSENSUALLY ACQUIRED AFTER THE DEFENDANT'S DOCUMENTS WERE RETURNED TO HIM AND HE WAS NOTIFIED THAT HE WAS FREE TO LEAVE?
Commonwealth's brief at 4.
¶ 9 Our standard of review of an order granting a motion to suppress is as follows:
In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where the Commonwealth appeals the decision of the suppression court, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible.
Commonwealth v. Demark, 800 A.2d 947, 952 (Pa.Super. 2002) (quoting Commonwealth v. Howard, 762 A.2d 360, 361 (Pa.Super. 2000)).
¶ 10 In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court explained that it granted Moyer's motion to suppress because the police officers unlawfully prolonged their detention of Moyer following the traffic stop, during which they obtained his consent to search his vehicle. Trial Court Opinion (T.C.O.), 3/31/06, at 2. The Commonwealth argues that the police officers conducted a lawful investigatory traffic stop of Moyer for the broken taillight, and that, contrary to the trial court's conclusion, the investigatory stop was over when Corporal Mays returned Moyer's documentation to him, told Moyer he was free to leave, and they began to part ways. The Commonwealth suggests that the period of time following the detention for the traffic stop, after Corporal Mays reinitiated contact with Moyer, should be characterized as a mere encounter rather than an investigatory detention, but that, even if characterized as an investigatory detention, Moyer still gave his consent voluntarily. See Commonwealth's brief at 22-23.
¶ 11 First, we note the following fundamental precepts that guide our analysis:
The Fourth Amendment protects against unreasonable searches and seizures, including those entailing only a brief detention. A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies. One such exception is consent, voluntarily given. The central Fourth Amendment inquiries in consent cases entail assessment of the constitutional validity of the citizen/police encounter giving rise to the consent; and, ultimately, the voluntariness of consent. Where the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus. Where, however, a consensual search has been preceded by an unlawful seizure, the exclusionary rule requires suppression of the evidence obtained absent a demonstration by the government both of a sufficient break in the causal chain between the illegality and the seizure of evidence, thus assuring that the search is not an exploitation of the prior illegality, and of voluntariness.
Accordingly, in assessing the lawfulness of citizen/police encounters, a central, threshold issue is whether or not the citizen-subject has been seized. Instances of police questioning involving no seizure or detentive aspect (mere or consensual encounters) need not be supported by any level of suspicion in order to maintain validity. Valid citizen/police interactions which constitute seizures generally fall within two categories, distinguished according to the degree of restraint upon a citizen's liberty: the investigative detention or Terry stop, which subjects an individual to a stop and a period of detention but is not so coercive as to constitute the functional equivalent of an arrest; and a custodial detention or arrest, the more restrictive form of permissible encounters. To maintain constitutional validity, an investigative detention must be supported by a reasonable and articulable suspicion that the person seized is engaged in criminal activity and may continue only so long as is necessary to confirm or dispel such suspicion; whereas, a custodial detention is legal only if based on probable cause. To guide the crucial inquiry as to whether or not a seizure has been effected, the United States Supreme Court has devised an objective test entailing a determination of whether, in view of all surrounding circumstances, a reasonable person would have believed that he was free to leave. In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject's movement has in some way been restrained. In making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred.
Commonwealth v. Strickler, 757 A.2d 884, 888-90 (Pa. 2000) (citations and footnotes omitted).
¶ 12 In Strickler and its companion case, Commonwealth v. Freeman, 757 A.2d 903 (Pa. 2000), our Supreme Court utilized these principles to evaluate the legality of a second police/citizen interaction that followed an initial, legal detention for a traffic violation. The Court recognized that "[s]ituations involving a request for consent to search following an initial lawful detention have posed difficult analytical questions for the courts[.]" Strickler, 757 A.2d at 890. The Court indicated that "the transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred." Id. at 892.
¶ 13 The parties in the instant case do not dispute that Moyer's car was properly stopped for a violation of the Motor Vehicle Code. Thus, "[t]he first crucial inquiry . . . is when does the initial investigative detention end. This distinction is crucial because if the subsequent interaction were merely a continuation of the initial lawful detention, the analysis shifts to a determination of whether the consent is given voluntarily." Commonwealth v. Ortiz, 786 A.2d 261, 265 (Pa.Super. 2001). "Conversely, if the subsequent police/citizen interaction follows a detention that has properly concluded, then that interaction must be analyzed anew to determine whether it amounts to a constitutionally valid seizure or merely a casual encounter." Id.
¶ 14 In determining whether there was a clear endpoint to the initial traffic stop, we consider "whether the objective circumstances would demonstrate to a reasonable citizen that he is no longer subject to police domination." Strickler, 757 A.2d at 901. In Freeman, our Supreme Court indicated that there was a clear endpoint to a lawful detention for a traffic stop when the officer gave the motorist a warning, returned the motorist's documents, and told her that she was free to leave. Freeman, 757 A.2d at 907. Similarly, in the instant case, we conclude the initial detention for the traffic violation ended when Corporal Mays issued the warning to Moyer regarding his broken taillight, returned his license and registration, and told him that he was free to leave. Accordingly, we "analyze anew" to determine whether the subsequent interaction with Moyer constituted a seizure, specifically an investigatory detention, or a mere encounter. See Ortiz, 786 A.2d at 265. This inquiry is necessary because, if the search of Moyer was preceded by an impermissible seizure, then Moyer's consent would be considered "infected by [the] unlawful detention." U.S. v. Mendenhall, 446 U.S. 544, 558 (1980).
¶ 15 "[N]ot all personal intercourse between policemen and citizens involves `seizures' of persons. 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. at 551 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 15 (1968)). "As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." Id. at 554. "The determination whether a seizure has been effected in the first instance is made upon an examination of the totality of the circumstances to determine whether a reasonable person would feel free to leave." Freeman, 757 A.2d at 906.
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.
Mendenhall, 446 U.S. at 554-55 (citations omitted). However, our Supreme Court has also enumerated factors to consider when determining whether there has been a seizure, including:
the existence and nature of any prior seizure; whether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review (for example — the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, and "excesses" factors stressed by the United States Supreme Court); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search. In general, a full examination must be undertaken of all coercive aspects of the police/citizen interaction.
Freeman, 757 A.2d at 906-907. Moreover, although taken into consideration within the totality of the circumstances, "the fact of the prior detention does not, in and of itself, convert the subsequent encounter into a seizure." Id. at 907.
¶ 16 Although the trial court viewed the circumstances in the instant case as constituting an unlawful prolongation of a traffic stop, it appears that the court characterized the events following the return of Moyer's license and Corporal Mays's statement that Moyer was free to leave as an unlawful investigatory detention. Specifically, the court found that
[b]efore [Moyer] could reenter his vehicle, Corporal Mays called his name and asked to question him further. [Moyer] agreed to answer additional questions and returned to the rear of his vehicle, where the corporal and trooper were positioned. Corporal Mays proceeded to obtain [Moyer's] consent to search. [Moyer] was not advised that he had a right to refuse the search.
T.C.O. at 3 (citations omitted). Other factors supporting a conclusion that this second interaction constituted an investigatory detention include the existence of the prior seizure for the traffic stop, the presence of two uniformed officers, and the fact that the stop occurred late at night on a dark rural road. Additionally, the nature of Corporal Mays's questioning of Moyer with regard to a prior marijuana conviction, prior to requesting Moyer's consent to search, in combination with the above factors, results in our conclusion that Moyer was subjected to a second investigatory detention. It would be unrealistic to conclude that a reasonable person would feel free to leave under these circumstances.
¶ 17 Finding that the second encounter constituted an investigatory detention, we must next evaluate its legality, as that inquiry directly impacts the voluntariness of Moyer's consent to search.
To conduct an investigative detention, a law enforcement officer must harbor at least a reasonable suspicion that the person seized is then engaged in unlawful activity. Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of [intrusion] warrant a man of reasonable caution in the belief that the action taken was appropriate.
See Commonwealth v. Johnson, 833 A.2d 755, 762-63 (Pa.Super. 2003) (citations omitted). The second police/citizen interaction must be evaluated independently to determine if reasonable suspicion existed based on factors arising after the end of the initial stop. Id. at 763; Ortiz, 786 A.2d at 266 ("Without existence of a reasonable suspicion after the first encounter had ended, the second detention was unlawful."). Thus, "even where a defendant's conduct during the initial stop `may have merited further inquiry,' the . . . officer's instruction to the defendant that he was free to leave vitiated any grounds he had to hold the defendant further." Johnson, 833 A.2d at 763 (quoting Ortiz, 786 A.2d at 266). Under such circumstances, "[a]bsent some new observation of suspicious circumstances, the defendant's continued detention [would be] illegal." Id.
¶ 18 The second detention in the instant case lacks the indicia of reasonable suspicion independent from observations made prior to the endpoint of the initial traffic stop, e.g., that Moyer had bloodshot eyes, was nervous and swaying, was making furtive movements. Accordingly, we conclude that the second investigatory detention was illegal, thereby tainting the voluntariness of Moyer's consent.
¶ 19 Thus, in a final effort to establish that Moyer's consent was voluntary, the Commonwealth would have to demonstrate that there exists both a "sufficient break in the causal chain between the illegality and the seizure of evidence, thus assuring that the search is not an exploitation of the prior illegality, and . . . voluntariness." Strickler, 757 A.2d at 889. The Commonwealth has failed to do so.
¶ 20 Although we could end our analysis here, it is worth noting that the trial court examined other factors that support its finding that Moyer's consent was not voluntary. In addition to the taint upon the consent stemming from the illegal second detention, these other factors include:
• the person's knowledge of the right to refuse to consent to the search;
• the maturity, sophistication and mental or emotional state of the defendant (including age, intelligence and capacity to exercise free will); and
• the presence or absence of physical contact or police direction of the subject's movements, the demeanor of the police officer, the manner of expression used by the officer in addressing the subject, the location of the encounter, and the content of the interrogatories or statements.
Commonwealth v. Rosas, 875 A.2d 341, 349 (Pa.Super. 2005) (citing Strickler, 757 A.2d 884, 897-898, 901 (Pa. 2000)). The trial court's findings, which are supported by the record, include the fact that Moyer was unaware of his right to refuse consent, that Moyer had an eighth grade education, and that Moyer "appeared to the court to be somewhat `slow' in terms of his intellectual capacity." T.C.O. at 2. Additionally, as noted above, the location of the encounter ( i.e., a dark rural road) and the content of Corporal Moyer's interrogatories ( i.e., with regard to the prior marijuana violation), also favor the trial court's conclusion that Moyer's consent was not voluntary.
¶ 21 For the foregoing reasons, we affirm the order granting Moyer's suppression motion.
¶ 22 Order affirmed.
¶ 23 Judge McCaffery files a dissenting opinion.
¶ 1 I respectfully dissent from the majority's disposition because I believe that the latter portion of the interaction between Appellee and the state police officers was not an investigative detention, but rather was a mere encounter, and that the consent to search was given voluntarily. Because I would determine that Appellee's consent to search his vehicle was valid, I would reverse the order that granted Appellee's motion to suppress.
¶ 2 I conclude that the proper outcome of the instant case is directly controlled by our Supreme Court's holding in Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000). Strickler affirmed this Court's reversal of the grant of a motion to suppress drug paraphernalia which had been seized from the accused's vehicle, located on a rural road in the early morning hours, after the accused gave to the two uniformed officers present at the scene his consent for a search by one of them. As noted by our Supreme Court in interpreting United States Supreme Court jurisprudence, neither the mere fact of a prior, lawful detention, nor subsequent questioning unrelated to the purpose thereof poses a federal constitutional impediment to the consent protocol immediately following a typical traffic stop. Id. at 67-68, 757 A.2d at 895. Our high court then endorsed the principle that a mere encounter conceivably could follow a traffic stop or similar detention, and acknowledged the consequent necessity for an assessment of the totality of the circumstances. Id. at 72, 757 A.2d at 897.
¶ 3 I agree with the majority here that the initial detention of Appellee ended when Corporal Mays issued the warning, returned Appellee's license and registration, and advised Appellee that he was free to leave. However, I cannot and do not agree that Corporal Mays and Trooper Hertzog engaged in the requisite show of authority during the latter portion of their interaction with Appellee for it to be characterized as a seizure or an investigatory detention.
¶ 4 The majority cites the following factors as mandating the conclusion that Appellee was subject to investigative detention prior to consenting to the search: 1) existence of the prior seizure for the traffic stop; 2) presence of two uniformed officers; 3) the fact that the stop occurred late at night on a dark rural road; 4) Corporal Mays's questioning Appellee regarding the prior marijuana conviction; and 5) Corporal Mays's failure to advise Appellee that he had a right to refuse to consent to the search. First, factors one, two, and three were all present in Strickler, where our Supreme Court expressly determined that they lacked coercive effect. Second, as to factor five, although the accused in Strickler was advised of his right to refuse to consent to the search, he was not advised, as was Appellee, that he was free to leave after the conclusion of the initial segment of the traffic stop. The Strickler Court held that the advice that the accused was free to refuse consent acted as a counterweight to the officer's failure to expressly advise the accused that he was free to leave. Id. at 78, 757 A.2d at 901. Conversely, in the case sub judice, Corporal Mays's advising Appellee that he was free to leave acted as a counterweight to Corporal Mays's failure to expressly advise Appellee that he had the right to refuse consent. Significantly, at the time Corporal Mays asked Appellee to answer a few more questions, Appellee had not yet re-entered his vehicle, and Corporal Mays thus had no opportunity or reason at that point to direct Appellee to step out of his vehicle or otherwise to direct him to move. Compare Commonwealth v. Freeman, 563 Pa. 82, 90, 757 A.2d 903, 907 (2000) (stating that "most significantly," it was the officer's direction to a previously-stopped motorist to step out of her vehicle that indicated an investigative detention). Based upon the foregoing, I conclude that the latter portion of Appellee's interaction with Corporal Mays and Trooper Hertzog was a mere encounter and not a second, independent investigative detention.
¶ 5 Because I would hold that no second investigative detention occurred, it necessarily follows that Appellee's consent to search his car was valid so long as it was voluntarily given. See Strickler supra at 78 n. 27, 757 A.2d at 901 n. 27. I disagree with the majority's conclusion that Appellee's consent to search his car was not voluntary. Although the suppression court noted that Appellee appeared to be "somewhat slow," this alone does not render the consent involuntary. As the Supreme Court stated in Strickler, "The reasons supporting the conclusion that Strickler was not seized at the time that he lent his consent to the vehicle search therefore also militate strongly in favor of a determination that his consent was voluntary." Id. at 79-80, 757 A.2d at 902. The same analysis is appropriate in the instant matter; therefore, I conclude that Appellee's consent to search his vehicle was voluntary.
¶ 6 Because I would determine that Appellee gave valid consent to search his car and that the suppressed evidence was thus the product of a lawful search, I would reverse the order granting suppression. Because the majority reaches a different resolution, I respectfully dissent.