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[U] Commonwealth v. Noga

Superior Court of Pennsylvania

March 7, 2014

DARIUS A. NOGA, Appellant


Appeal from the Judgment of Sentence January 10, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001524-2012.

Joseph D. Seletyn, Esq.




Darius A. Noga appeals from the judgment of sentence of two to four days incarceration and six months probation imposed by the trial court after it found him guilty of Driving Under the Influence ("DUI") of Alcohol or Controlled Substance: .10% to less than .16%, and DUI-general impairment. We affirm.

The trial court cogently relayed the factual background of this matter as follows.

On November 27th of 2011, Officer [Michael] Apicella of the Stowe Township Police was in a marked patrol car on routine patrol. At approximately 1:47 a.m. was [sic] he was on Ridge Avenue where it intersects with Lamont Street, an unlined two lane road with one lane of travel in each direction. The road is curved with sidewalks on both sides.
Officer Apicella's attention was drawn to a vehicle parked on the side of the road with its engine running and running lights on. The car was legally parked in front of a house on Ridge Avenue. However, it was unusual to see a car parked in that particular place. Officer Apicella had never seen a car parked in that position in more than a decade of working for [the] Stowe Township Police Department.
As he slowly passed by, he observed Defendant with his head down, slumped over the steering wheel with his face turned away form [sic] the officer. Upon observing this[, ] Officer Apicella pulled alongside the vehicle and parked. Officer Apicella activated his overhead lights for safety reasons as his cruiser as [sic] was stopped in a lane of travel. At this time, Officer Apicella called dispatch to advise them that a man was slumped over in a vehicle on the side of the road. Because of the [o]fficer's concern for the welfare of Defendant, he exited his vehicle and proceeded to the vehicle to check on Defendant. Officer Apicella observed the Defendant slumped over the steering wheel.
After approximately fifteen (15) seconds, Defendant lifted his head and looked in the officer's direction. The Defendant opened his driver door and the [o]fficer immediately smelled an odor of alcohol emanating from his vehicle. The officer requested that Defendant turn off the vehicle and he complied. The officer asked Defendant if he was "okay?" Defendant appeared to be confused and stated he was from the North Hills and had driven to that location so a friend could visit someone. He told the [o]fficer he had been parked there for approximately ten minutes before the [o]fficer arrived.
In his encounter with Defendant, Officer Apicella observed slurred speech, glassy eyes and an odor of alcohol emitting from the Defendant. He observed an open bottle of wine in the center console that was half empty. When asked if he had any medical problems, Defendant indicated he did not. Defendant agreed to perform field sobriety tests. Defendant indicated he understood the instructions. The officer gave instructions for the walk and turn test, whereby the Defendant failed because he was unable to maintain his balance during the instruction phase, started before the instruction[s] were finished, and did not touch heel to toe on the first, second, and thirds steps, and used his arms for balance. The final test was the one-legged stand. Defendant failed this test by swaying while he was lifting his foot, and he also used his arms for balance.
A blood draw was conducted at 2:15 a.m. A blood alcohol content of .116 was obtained.

Trial Court Opinion, 6/5/13, at 2-3 (citations to record omitted).

Subsequently, Appellant filed a suppression motion. Therein, he contended that the officer's actions in parking his vehicle beside Appellant and activating his lights constituted an investigatory detention without reasonable suspicion. The court denied Appellant's motion. Appellant then proceeded to a non-jury trial. The court found Appellant guilty of the aforementioned charges. Appellant agreed to proceed immediately to sentencing. Accordingly, the court sentenced Appellant to two to four days incarceration and six months probation. This timely appeal ensued. The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court authored its Pa.R.A.P. 1925(a) decision. The matter is now ready for this Court's consideration. Appellant presents one issue for our review.

I. Although Judge Bigley correctly determined at the suppression hearing (but not in her Opinion) that a seizure occurred when Officer Apicella stopped directly alongside Mr. Noga's car and activated the overhead lights of his marked police crusier, whether Judge Bigley erred in concluding that, at the precise moment of seizure, Officer Apicella possessed reasonable suspicion, based on specific and articulable facts, to believe that Mr. Noga was engaged in criminal activity?

Appellant's brief at 4.

We evaluate the denial of a suppression motion under well-established principles. We consider the evidence of the Commonwealth, as the prevailing party below, and any evidence of the defendant that is uncontradicted when examined in the context of the record. Commonwealth v. Sanders, 42 A.3d 325, 330 (Pa.Super. 2012).[1] This Court is bound by the factual findings of the suppression court where the record supports those findings and may only reverse when the legal conclusions drawn from those facts are in error. Id. Importantly, we are not bound by the legal conclusions of the suppression court. In re T.B., 11 A.3d 500, 505 (Pa.Super. 2010).

Appellant argues that Officer Apicella seized him when the officer "stopped directly alongside his car and activated the overhead lights of his marked police cruiser." Appellant's brief at 13. He contends that at the moment of this seizure, Officer Apicella did not possess reasonable suspicion. In presenting his arguments Appellant attempts to distinguish this matter from Commonwealth v. Kendall, 976 A.2d 503 (Pa.Super. 2009), and Commonwealth v. Johonoson, 844 A.2d 556 (Pa.Super. 2004). Additionally, he maintains that this case is controlled by Commonwealth v. Hill, 874 A.2d 1214 (Pa.Super. 2005), and Commonwealth v. Mulholland, 794 A.2d 398 (Pa.Super. 2002).

In contrast, the Commonwealth submits that Officer Apicella's activating of his lights and pulling next to Appellant, after observing Appellant hunched over his steering wheel, was a mere encounter. It asserts that Johonoson, supra, and Commonwealth v. Collins, 950 A.2d 1041 (Pa.Super. 2008) (en banc), support the suppression court's ruling.

Both the Fourth Amendment and Article I, § 8 of the Pennsylvania Constitution restrict governmental action relative to seizures of a person and protect against unreasonable seizures. In evaluating interaction between law enforcement and other citizens, Pennsylvania courts look to whether the interaction is a mere encounter, an investigatory detention, or a custodial detention, i.e., an arrest. The latter is not in question herein.

A mere encounter does not require police to have any level of suspicion that the person is engaged in wrongdoing. Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super. 2012). At the same time, such an encounter does not carry any official compulsion for the party to stop or respond. Id. An investigative detention, however, subjects an individual to a stop and short period of detention. Id. This seizure does not involve actions that are so coercive as to comprise the equivalent of an arrest. Id. To conduct an investigative detention, police must have reasonable suspicion of criminal activity. Id.

In Kendall, supra, two state police troopers pulled behind a vehicle at 1:15 a.m. The troopers traveled behind the car for approximately two or three minutes. The driver of the car then used his turn signal and pulled onto the side of the road. The police then pulled behind the car. Neither trooper exited the patrol car for approximately one minute, as they ran the license plate number of the car. Thereafter, the police for the first time activated the overhead lights on the cruiser. One trooper exited and approached the driver. The trooper asked the driver why he pulled to the side of the road, and the driver responded to allow the police to pass. While speaking with the driver, the trooper observed an open beer can in the passenger seat and detected the odor of alcohol on the driver's breath.

According to the trooper, the driver also slurred his speech, had glassy eyes, and made very deliberate movements. Ultimately, the driver failed field sobriety test and his BAC was determined to be .14%. The trooper testified at the suppression hearing that he activated his light so that the driver was aware that he was approaching and to alert other vehicles of the stopped vehicles. Relying on Johonoson, Collins, and Commonwealth v. Conte, 931 A.2d 690 (Pa.Super. 2007), this Court concluded that the interaction between the state trooper and Kendall was a mere encounter.

This Court in Johonoson also concluded that the following facts only established a mere encounter between police and Johonoson. Therein, state police observed a vehicle being driven at a speed well below the speed limit with its hazard lights flashing at approximately 3:00 a.m. The vehicle pulled to the side of the road without any prompting by the police. The trooper then parked behind the car and, for safety reasons, activated his overhead lights. After the trooper approached the car, he immediately detected that the driver appeared to be intoxicated. We specifically ruled that the act of turning on the officer's overhead lights did not constitute an unconstitutional seizure. The Johonoson Court continued,

officers often simply have no safe way to initiate a mere encounter except for activating their flashing lights. Such an encounter can safely commence only after the officer turns on his lights, approaches the driver, and begins asking questions. Under these circumstances, the relevant inquiry is not whether flashing lights convey a signal that a motorist is not free to leave. Rather, the relevant inquiry is whether a reasonable person would feel free to "decline the officer's requests or otherwise terminate the encounter" once the officer approaches the driver and begins asking questions.

Johonoson, supra at 563.

In contrast, in Hill, supra, we found that a driver who maneuvered his truck to the side of the road to allow a car to pass him was not subject to a mere encounter when police activated their lights and pulled behind him. We distinguished Johonoson on the grounds that the driver in Hill was not driving well below the speed limit with his hazard lights engaged.

This Court also upheld a decision to suppress evidence in Mulholland, supra. In that case, at approximately 6:30 p.m., police saw a conversion van parked in a parking lot of an abandoned tavern. The van's lights were on. Upon witnessing the parked van, the officer pulled his vehicle into the lot and blocked its ability to maneuver. The officer explained that had the driver of the van attempted to drive away, he would have effectuated a traffic stop. After blocking the van, the officer activated his alley lights and approached. While speaking with the driver, the officer recognized the smell of burnt marijuana. The driver admitted to having smoked a joint earlier. The officer then removed the driver from the van and searched the driver, including a fanny pack that the driver was wearing. Inside the fanny pack was an opaque pill bottle that later was discovered to contain cocaine. After another officer arrived on the scene, the driver agreed to a search of his van. That search uncovered additional cocaine and a marijuana roach. The Mulholland Court held that these facts showed that the initial interactions between the driver and police was not a mere encounter, but an investigative detention without reasonable suspicion.

More recently, in Collins, supra, an en banc panel of this Court found that a state trooper's actions of approaching a vehicle at 7:00 p.m. at a scenic overlook and shining his car's headlights into the stationary vehicle constituted a mere encounter. The trooper in Collins parked his vehicle about twenty feet from the car, and did not block its exit. He explained that he believed the car was broken down. According to the trooper, he did not ordinarily see cars parked at the scenic overlook at nighttime, but admitted that there was nothing illegal about where the car was parked. After approaching the car, he noticed a bong sitting between the driver and front passenger seats and smelled marijuana. The front seat passenger, Collins, admitted that the bong was his. Collins was charged by summons with possession of drug paraphernalia.

We disagree with Appellant that this case is controlled by Hill and Mulholland. Based on the totality of the circumstances, we find that the suppression court's legal conclusions are sound. Instantly, the critical fact ignored by Appellant is that the officer observed Appellant hunched over his steering wheel. Since the driver was slumped over the wheel when the officer observed him, it was entirely appropriate for the officer to approach the driver to determine his status. The act of turning the officer's lights on does not alone constitute an investigatory detention. Although the car was not parked illegally, the officer testified that it was unusual for a car to be located in that spot. As in Johonoson, an officer may activate his lights to alert other travelers that vehicles are stopped on a dark roadway, and to assure the stopped vehicle that the person approaching is a law enforcement official. Here, the officer was actually in the lane of travel, and did not block Appellant's car. For the aforementioned reasons, the officer's initial interaction with Appellant was a mere encounter, and the suppression court did not err.

Judgment of sentence affirmed.

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