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December 8, 1997


Appeal from the Judgment of Sentence in the Court of Common Pleas of Mercer County, Criminal Division at No. 1680 Criminal 1995. Before WHERRY, J.

Before: Popovich, Saylor and Olszewski, JJ. Opinion BY Popovich, J. Olszewski, J. files a Dissenting Opinion.

The opinion of the court was delivered by: Popovich

Filed December 8, 1997


This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Mercer County following appellant's conviction on the charges of possession of a controlled substance and possession of drug paraphernalia. Herein, appellant contends that the lower court erred in failing to suppress illegal narcotics and a marijuana pipe found in his possession after he was seized and searched by police pursuant to an anonymous tip. We reverse.

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal Conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is an error in the legal Conclusions drawn from those factual findings.

Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177, 178-179 (1992). We find that the suppression court's factual findings are supported by the record and are as follows.

On October 4, 1995, at approximately 3:30 p.m., a 911 dispatcher contacted a Sharon police officer and informed him that an unidentified caller had reported that Phillip Martin was selling marijuana and Percocet at the Capital Cafe. The officer relayed this information to Detective Raymond Greene. Detective Greene, who knew Martin and was aware that he had "a drug problem," immediately proceeded to the Capital Cafe. He was accompanied by two officers, both of whom were in uniform. Upon arrival, the uniformed officers remained outside the cafe. Detective Greene, who was not in uniform, entered the cafe in search of Martin. Inside, the detective observed four or five patrons, none of whom was Martin. The detective then questioned a barmaid and learned that Martin was using the restroom. After Martin exited the restroom, Detective Greene approached him, addressed him as "Phil," asked if he could speak with him and asked him "to step outside." Martin said, "Okay." He then walked out of the cafe and into an adjacent public parking lot. Once outside, Martin and the detective were joined by the two uniformed officers. Detective Greene then explained the reason for the officers' "visit." Specifically, he informed Martin that the department had received a tip that he was selling narcotics at the Capital Cafe. Martin responded that he did not use or sell illegal narcotics. The detective then asked Martin if he would mind emptying his pockets. Martin walked over to the police cruiser and placed the contents of his pockets on the cruiser's hood. Detective Greene then approached the cruiser, inspected the contents of Martin's pockets and discovered a pipe containing marijuana residue. Martin was arrested and searched by one of the uniformed officers. The search revealed a baggie of marijuana, part of a marijuana cigarette and a baggie containing Percocet. Martin was then transported to the police station and later charged with possession of a controlled substance and possession of drug paraphernalia.

Martin filed a pre-trial motion to suppress, which was denied by the suppression court. Subsequently, he was tried, convicted and sentenced on all charges. This timely appeal followed.

Appellant contends that the suppression court improperly denied his motion to suppress since (1) he did not voluntarily exit the cafe with Detective Greene, (2) he was seized illegally in the parking lot when he was questioned by Detective Greene, (3) he did not voluntarily empty his pockets and (4) the police did not have probable cause to arrest or search him.

As we undertake consideration of appellant's initial claim, we are mindful that not every encounter between a citizen and the police is so intrusive as to trigger the protections provided by the Pennsylvania and United States Constitutions. *fn1 In the Interest of Jermaine, 399 Pa. Super. 503, 582 A.2d 1058 (1990).

This Court has differentiated between a 'mere encounter' [and] an 'investigative detention'.... A mere encounter [or request for information] need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. An investigative detention must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest....In order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct could have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter.

Commonwealth v. Vasquez, 1997 Pa. Super. LEXIS 3377, *13-14, No. 00030 Philadelphia 1997 (Pa. Super. filed 10/28/97) (citations and quotations omitted).

We find that appellant was not seized by Detective Greene when he initially exited the cafe. Prior to leaving the cafe, appellant was not questioned extensively by Detective Greene. Rather, the detective merely approached appellant, indicated that he would like to speak with him and asked him if he would "step outside." There is no indication that appellant was told that he was required to leave the cafe. Rather, the detective simply asked for his cooperation. Florida v. Rodriguez, 469 U.S. 1, 105 S. Ct. 308, 311, 83 L. Ed. 2d 165 (1984) (per curiam) *fn2 ("The initial contact between the officers and respondent, where they simply asked if he would step aside and talk with them, was clearly [a] consensual encounter...."). Moreover, Detective Greene approached and spoke to appellant in a non-threatening manner. There were neither threats nor any show of force. There was no evidence of any attempts at ...

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