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Commonwealth v. Au

December 1, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JOHN D. AU APPELLANT



Appeal from the Order Entered October 30, 2007 In the Court of Common Pleas of Centre County Criminal Division at No. CP-14-CR-0001363-2007.

The opinion of the court was delivered by: Bender, J.

BEFORE: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN, BENDER, BOWES, PANELLA, DONOHUE, SHOGAN and ALLEN, JJ.

OPINION

¶ 1 This is a Commonwealth appeal from the order granting John D. Au's (Appellee) motion to suppress evidence. The Commonwealth claims that the trial court erred in granting Appellee's motion. For the following reasons, we affirm.

¶ 2 The trial court summarized the facts of this case as follows:

While on routine patrol on May 31, 2007, Sergeant Ryan Hendrick of the Ferguson Township Police Department observed a vehicle backed in and parked at Watkins Dariette (hereinafter "Dariette") on East Pine Grove Road at approximately 12:29 a.m. The Dariette closed several hours earlier, between 9:00 p.m. and 10:00 p.m. Sgt. Hendrick noted that the car was not parked at the Dariette several minutes earlier when he patrolled the same area. He pulled into the parking lot and positioned his marked cruiser so that his headlights were shining directly into the passenger compartment of the vehicle. The officer did not, however, activate his overhead emergency lights.

After exiting his police cruiser, Sgt. Hendrick, who was dressed in full uniform, approached the passenger's side of the vehicle where Defendant was seated. He discovered that the car had six occupants; two males in the front and four females in the rear. The driver, and also the owner of the car, was later determined to be Jason Price. Sgt. Hendrick asked why they were parked at the Dariette, to which an unidentified female answered "hanging out." He then requested each individual produce a form of identification. Defendant opened the glove box of Mr. Price's car to retrieve his license. Sgt. Hendrick observed, in plain view, two baggies of a green leafy substance that he suspected to be marijuana. He checked Defendant's identification and then walked around the vehicle to the driver's side door, during which time he called for another police officer to assist him on the scene. Sgt. Hendrick then opened the driver's door and discovered additional baggies of marijuana and paraphernalia. At this time, he arrested both Defendant and Mr. Price, read them their Miranda rights, and separated the two men, placing Defendant in the back of the police cruiser. The four individuals in the back seat of the car were determined to be juveniles and were sent home with their parents.

Sgt. Hendrick spoke first with Mr. Price, at which time, Mr. Price gave a statement claiming possession of all the substances and paraphernalia except the substances contained within the glove box. Sgt. Hendrick then separately questioned Defendant, who denied possession of the marijuana in the glove box, but admitted to smoking marijuana with Mr. Price earlier that day. Prior to making this statement, the officer had reminded Defendant of his Miranda rights, and, Defendant, again, acknowledged that he understood these rights. After verifying that Mr. Price was not under the influence, Sgt. Hendrick informed both Defendant and Mr. Price that they were free to go and would be receiving a summons by mail.

Trial Court Opinion (T.C.O.), 10/30/07, at 1. Prior to trial, Appellee filed a motion to suppress, claiming that he was subjected to an investigative detention that was not supported by reasonable suspicion. The trial court granted the motion on the basis that Officer Hendrick subjected Appellee to an investigatory detention but could not articulate specific facts that would give rise to a reasonable suspicion that criminal activity was afoot. The Commonwealth then appealed presenting the following three questions for our review:

1. Did the court err in finding that the officer did not have the requisite reasonable suspicion necessary to approach Appellee's vehicle, ask to speak to the occupants, and ask for identification?

2. Did the court err in finding that the officer's level of interaction was an investigative detention and not a mere encounter?

3. Did the trial court err in granting the motion to suppress? Brief for Appellant at 4.

¶ 3 All three of the Commonwealth's questions challenge the trial court's grant of Appellee's motion to suppress.

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.

Commonwealth v. Nester, 709 A.2d 879, 880-81 (Pa. 1998) (citations omitted). We note that while the Commonwealth has presented three separate questions for our review, it presents one joint argument for all three questions.

¶ 4 The Commonwealth claims that when Officer Hendrick first came upon the vehicle, this was a mere encounter requiring no suspicion at all.

Fourth Amendment jurisprudence has led to the development of three categories of interactions between citizens and the police. The first of these is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, 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. Finally, an arrest or "custodial detention" must be supported by probable cause.

Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citations omitted). We agree with the Commonwealth's first contention, as the law clearly recognizes that when an officer approaches a citizen and talks to that citizen without any assertion of authority, then what has transpired is a mere encounter. See id.

¶ 5 However, we conclude that this encounter ripened into an investigative detention when Officer Hendrick requested identification from all of the vehicle's occupants.

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 ...


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