Com. v. Givler, B. ( 2018 )


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  • J-A15026-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellant           :
    :
    :
    v.                          :
    :
    :
    BRANT N. GIVLER                          :   No. 1996 MDA 2017
    Appeal from the Order Entered December 7, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
    CP-67-CR-0005883-2017
    BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY MURRAY, J.:                              FILED JULY 30, 2018
    The Commonwealth of Pennsylvania (Commonwealth) appeals from the
    order granting Appellee Brant N. Givler’s suppression motion. For the reasons
    that follow, we affirm.
    The trial court summarized the facts presented at the suppression
    hearing as follows:
    [Officer Mark Jackson (Officer Jackson)] testified that close to
    midnight on June 20, 2017, he observed a Chevrolet pickup truck
    parked in the middle of a private parking lot adjacent to Long Level
    Road, north of the Dock 2 Boat Ramp in York County,
    Pennsylvania. Officer Jackson stated that he had driven past that
    location while on patrol an hour and a half earlier and had not
    observed the vehicle. Officer Jackson approached the vehicle and
    observed [Appellee] asleep in the driver seat, with the window
    rolled down, and the radio on. The officer observed the keys of
    the pickup truck to be in the ignition[,] but the engine was not
    running. [Appellee] had a bottle of Yuengling Beer in between his
    lap.
    After Officer Jackson approached the vehicle, he attempted to
    wake [Appellee]. Once awake, Officer Jackson observed signs of
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    impairment. Officer Jackson stated [Appellee] told him he had
    bought a six-pack of beer from the River Beverage in Wrightsville,
    Pennsylvania, around 7 p.m. that evening.         Officer Jackson
    testified that [Appellee] told Officer Jackson that he began
    drinking the six-pack of beer shortly after he purchased it and
    then took his dog to a park in Wrightsville and then drove to the
    boat ramps around 10 p.m. that night. Subsequently, upon
    further investigation by Officer Jackson, [Appellee] was arrested
    on suspicion of [driving under the influence of alcohol (DUI)].
    [Appellee] was then taken to [c]entral [b]ooking where he was
    read an updated DL-26B form and consented to a blood draw.
    Trial Court Opinion, 12/7/17, at 3-5 (record citations omitted).
    Appellee was charged with DUI – general impairment and DUI – high
    rate of alcohol.1 On November 6, 2017, Appellee filed a pre-trial motion to
    suppress in which Appellee argued that his arrest for DUI and subsequent
    blood draw were unconstitutional. On November 22, 2017, the trial court held
    a hearing on Appellee’s suppression motion. On December 7, 2017, the trial
    court granted Appellee’s motion concluding that Officer Jackson did not
    possess probable cause to arrest Appellee for DUI.        See id. at 5.     The
    Commonwealth timely appealed to this Court.2 Both the trial court and the
    Commonwealth have complied with Rule 1925 of the Pennsylvania Rules of
    Appellate procedure.
    On appeal, the Commonwealth presents the following issue for review:
    ____________________________________________
    1   75 Pa.C.S.A. § 3802(a)(1), (b).
    2  The Commonwealth certified that the trial court’s December 7, 2017 order
    would terminate or substantially handicap the prosecution of this criminal
    offense pursuant to Rule 311(d) of the Pennsylvania Rules of Appellate
    Procedure.
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    Did the suppression court err in suppressing the evidence obtained
    as a result of Officer [] Jackson’s interaction with [Appellee] where
    the interaction was a mere encounter requiring no level of
    suspicion, the mere encounter gave rise to reasonable suspicion
    for Officer Jackson to conduct an investigatory detention, and, as
    a result of the lawful interaction, Officer Jackson gained probable
    cause to arrest [Appellee]?
    Commonwealth’s Brief at 4.
    The standard of review for addressing a trial court’s order granting a
    suppression motion is as follows:
    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 is to determine if
    the suppression court properly applied the law to the facts.
    Commonwealth v. Vetter, 
    149 A.3d 71
    , 75 (Pa. Super. 2016), appeal
    denied, 
    169 A.3d 577
     (Pa. 2017) (quotations and citations omitted).
    “The Fourth Amendment of the Federal Constitution and Article I,
    Section   8   of   the   Pennsylvania    Constitution    protect   individuals   from
    unreasonable searches and seizures.” Commonwealth v. Walls, 
    53 A.3d 889
    , 892 (Pa. Super. 2012). “To secure the right of citizens to be free from
    such   [unreasonable]      intrusions,   courts   in    Pennsylvania   require    law
    enforcement officers to demonstrate ascending levels of suspicion to justify
    their interactions with citizens as those interactions become more intrusive.”
    Commonwealth v. Pratt, 
    930 A.2d 561
    , 563 (Pa. Super. 2007). Courts in
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    this Commonwealth have recognized three types of interactions between the
    police and a citizen:   a mere encounter, an investigative detention, and a
    custodial detention.
    A mere encounter between police and a citizen need not be
    supported by any level of suspicion, and carr[ies] no official
    compulsion on the part of the citizen to stop or to respond. An
    investigatory stop, which subjects a suspect to a stop and a period
    of detention . . . requires a reasonable suspicion that criminal
    activity is afoot. A custodial search is an arrest and must be
    supported by probable cause.
    Commonwealth v. Newsome, 
    170 A.3d 1151
    , 1154 (Pa. Super. 2017).
    This Court has explained, that when determining whether an interaction
    is a mere encounter versus an investigative detention,
    the focus of our inquiry is on whether a seizure of the person has
    occurred. Within this context, our courts employ the following
    objective standard to discern whether a person has been seized:
    [w]hether, under all the circumstances surrounding the incident
    at issue, a reasonable person would believe he was free to leave.
    Thus, a seizure does not occur simply because a police officer
    approaches an individual and asks a few questions.
    Commonwealth v. Cooper, 
    994 A.2d 589
    , 592 (Pa. Super. 2010) (citations,
    quotation marks, and ellipses omitted). In contrast, “a custodial detention
    occurs when the nature, duration and conditions of an investigative detention
    become so coercive as to be, practically speaking, the functional equivalent of
    an arrest.”   Commonwealth v. Mackey, 
    177 A.3d 221
    , 227 (Pa. Super.
    2017) (quotations and citations omitted).
    The Commonwealth argues that Officer Jackson’s interaction with
    Appellee began as mere encounter and that upon discovering Appellee asleep
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    in his vehicle with a bottle of beer between his legs, appropriately investigated
    Appellee for DUI. The Commonwealth asserts that through this investigation,
    Officer Jackson developed the probable cause necessary to arrest Appellee for
    DUI.
    The Commonwealth’s argument, much of which is devoted to its claim
    that Officer Jackson’s interaction with Appellee began as a mere encounter,
    largely misses the mark. The suppression hearing transcript reflects that the
    trial court agreed with the Commonwealth that the interaction started as a
    mere encounter. N.T., 11/22/17, at 33. The trial court had no issue with
    Officer Jackson checking on Appellee’s vehicle when it was parked late at night
    in a parking lot the officer reasonably believed to be closed to the public at
    the time of night. 
    Id.
     Thus, whether or not the interaction began as a mere
    encounter had no bearing on the trial court’s decision.
    Rather, the trial court concluded that Officer Jackson did not have
    probable cause to arrest Appellee for DUI. Probable cause exists “where the
    facts and circumstances within the officers’ knowledge are sufficient to
    warrant a person of reasonable caution in the belief that an offense has been
    or is being committed.” Commonwealth v. Stultz, 
    114 A.3d 865
    , 883 (Pa.
    Super. 2015) (quotations and citations omitted).        “We evaluate probable
    cause by considering all relevant facts under a totality of circumstances
    analysis.” Commonwealth v. Hernandez, 
    935 A.2d 1275
    , 1284 (Pa. 2007).
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    Officer Jackson arrested Appellee for suspicion of DUI under Section
    3802(a)(1) of the Motor Vehicle Code.        Section 3802(a)(1) prohibits an
    individual from “driving, operating, or in actual physical control of the
    movement of a vehicle during the time when he or she was rendered incapable
    of safely doing so due to the consumption of alcohol. Commonwealth v.
    Teems, 
    74 A.3d 142
    , 145 (Pa. Super. 2013) (quotations and citation omitted).
    The trial court found that there was no evidence that Appellee exercised
    control over his vehicle while he was intoxicated. Trial Court Opinion, 12/7/17,
    at 5.
    We agree. The record reflects that around 10:30 p.m. on the night in
    question Officer Jackson drove by the parking lot at issue, which was empty
    at that time.    N.T., 11/22/17, at 7.   Officer Jackson stated that when he
    returned approximately an hour-and-a-half later, he observed Appellee’s truck
    parked in the middle of the lot. Id. at 6. When Officer Jackson approached
    Appellee’s vehicle, he noticed that the engine was off, the keys were in the
    ignition, the radio was on, and Appellee was asleep with a single bottle of beer
    in his lap. Id. at 7-8. Officer Jackson testified that when he woke Appellee
    and began to question him, Appellee told that he bought a six-pack of beer at
    around 7:00 p.m. that evening and that he began drinking shortly after he
    purchased it. Id. at 9-10. Appellee then told Officer Jackson that he took his
    dog to the park and then drove to the boat docks. Id. at 10.
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    These facts, in particular that Appellee was sitting intoxicated in a
    parked vehicle with the engine off, do not support a conclusion that Officer
    Jackson reasonably believed Appellee was in actual physical control over his
    vehicle while intoxicated. As this Court has explained,
    A brief review of the cases which considered the concepts of actual
    physical control reveals that, at a very minimum, a parked car
    should be started and running before a finding of actual physical
    control can be made. See, e.g., Commonwealth v. Bobotas,
    [] 
    588 A.2d 518
     ([Pa. Super.] 1991) (car running with defendant
    in parked car); Commonwealth v. Kloch, [] 
    327 A.2d 375
     ([Pa.
    Super.] 1974) (automobile parked, lights on, engine running,
    driver asleep behind steering wheel); [Com., Dep’t of Transp.]
    v. Farner, [] 
    494 A.2d 513
     ([Pa. Cmwlth.] 1985) (engine running,
    transmission in park, brake lights on, person behind wheel with
    hands on steering wheel); Commonwealth v. Kallus, [] 
    243 A.2d 483
     ([Pa. Super.] 1968) (car immobile in snow bank, engine
    running).
    Commonwealth v. Price, 
    610 A.2d 488
    , 490 (Pa. Super. 1992).
    Moreover, the testimony indicating that Appellee admitted that he began
    drinking earlier in the evening does not establish that he operated his vehicle
    while intoxicated. Noticeably missing from Officer Jackson’s testimony was
    any evidence as to the amount of alcohol consumed by Appellee throughout
    the evening.3 There was also no evidence presented indicating when Appellee
    last consumed alcohol or whether he consumed alcohol in close proximity to
    the time he drove to the boat docks. Furthermore, there was no evidence
    ____________________________________________
    3 We note that the Commonwealth asserts that Officer Jackson observed an
    empty six-pack of beer in Appellee’s vehicle. Commonwealth’s Brief at 18.
    There is, however, no evidence of record supporting this assertion.
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    indicating the amount of alcohol he consumed out of the bottle that Officer
    Jackson observed in Appellee’s lap.
    As the trial court explained, the facts were “too tenuous to establish”
    that Officer Jackson reasonably believed Appellee had operated his vehicle
    while under the influence of alcohol. See Trial Court Opinion, 12/7/17, at 5.
    Accordingly we conclude that the trial court did not err in determining that
    Officer Jackson lacked probable cause to arrest Appellee for DUI.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 07/30/2018
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