Com. v. Williams, L. ( 2018 )

J-A14038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
LANCE WILLIAMS :
:
Appellee : No. 3525 EDA 2017
Appeal from the Order Entered September 27, 2017
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0008669-2016
BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 09, 2018
The Commonwealth of Pennsylvania appeals1 from the order of the
Court of Common Pleas of Montgomery County granting the pretrial
suppression motion of Appellee Lance Williams. After careful review, we are
constrained to reverse and remand for further proceedings.
“On June 6, 2017, as part of his omnibus pretrial motion, [Appellee]
sought suppression of narcotics seized by police officers after a warrantless
search of the vehicle he was driving on the evening of September 14, 2016.”
Trial Ct. Op. at 1. The omnibus pretrial motion alleged that Appellee’s arrest
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1The Commonwealth certified in its notice of appeal that the order in question
will terminate or substantially handicap its prosecution of Appellee. Hence,
we have jurisdiction over this appeal. See Commonwealth v. Moyer, 954
A.2d 659, 661 n.1 (Pa. Super. 2008) (en banc) (citing Commonwealth v.
Dugger, 486 A.2d 382 (Pa. 1985); Pa.R.A.P. 311(d)).
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* Retired Senior Judge assigned to the Superior Court.
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was illegal and that the search of his vehicle was conducted without a warrant
or probable cause. Omnibus Mot., 6/6/2017, at 3 (not paginated).
On August 22, 2017, the trial court held a hearing on the motion to
suppress.2 At the beginning of the hearing, Appellee contended that “the
consent to search, which was alleged to have been obtained in this case, was
done so in a not-knowing, voluntary, and intelligent manner. Therefore, any
fruits therefrom deprive the defendant of his federal and constitutional rights.”
N.T., 8/22/2017, at 3.
The Commonwealth first presented the evidence of Officer
Michael Dalbey, who was then serving with the Marlborough Township Police
Department but, on the day of the incident, had been with the Upper
Perkiomen Police Department. Id. at 4-6. Officer Dalbey testified that, on
September 14, 2016, at approximately 7:00 P.M., he was stopped at a stop
sign in his marked patrol vehicle while monitoring traffic at Penn Street and
Route 663 in Pennsburg Borough, Montgomery County. Officer Dalbey
continued that “[a] white Chrysler four-door passed by [his] location in the
westward direction. It caught [his] attention because of the dark tinted
windows.” Id. at 7. Officer Dalbey explained that he followed that automobile
for about half a mile before turning on his patrol car’s red and blue lights. Id.
at 7-8, 17.
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2 “Our scope of review is limited to the evidence presented at the suppression
hearing.” Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa. Super. 2018)
(citations omitted).
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Officer Dalbey testified that, after the Chrysler pulled into the “well lit”
parking lot of an E-Z Shoppe, he pulled his patrol vehicle behind the Chrysler,
exited his vehicle, and approached the Chrysler “cautiously,” as he did not
“know the number of occupants in the vehicle” due to the overly tinted
windows, including the back windshield. Id. at 7-8, 10. The driver of the
Chrysler rolled down his side window and provided the officer with a
Pennsylvania driver’s license identifying him as Lance Williams. Id. at 8, 10.
Officer Dalbey described Appellee as “jittery, kind of anxious or excited, [and]
nervous[.]” Id. at 10. Two passengers were seated in the vehicle. Id. at 8.
Officer Dalbey asserted that he returned to his patrol vehicle, wrote a
warning to Appellee to fix the Chrysler’s illegally tinted windows within fifteen
days, turned off his emergency lights, again exited his patrol vehicle, and
asked Appellee “to meet [him] at the rear of the vehicle to discuss the warning
card[,]” and that Appellee complied. Id. at 11. Officer Dalbey testified that
he returned Appellee’s license, id. at 22, then had the following conversation:
During the explanation of why I stopped him, I told him why. And
then when I told him he was free to leave, he turned around − he
took like a step and a half, turned around, and reengaged me, and
asked me how long I’ve been a police officer. We discussed that.
He said his father was a police officer in Philadelphia. And then
we started discussing my references to the city. And during the
conversation, I came to know that he grew up on one side of
Roosevelt Boulevard and I grew up on the other side of Roosevelt
Boulevard. At that time, we engaged in further conversation. And
I said, Lance, do you think this is a high-crime area? And he said,
no, you guys probably get domestics or something. I said, no, we
have a bad drug problem around here, man. So we continued to
talk. And I said, listen, do you have any weapons or narcotics,
anything that’s going to hurt anyone? And he said no. I said, do
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you mind if my partner, [O]fficer McVeigh arrives on the scene
just to kind of back me up? And Lance’s response was, no, you
can check the vehicle, there’s nothing in it. I said, are you sure?
He said, yeah. He said, to the best of my recollection, the trunk
smells like cat piss. And at that point, I indicated that [O]fficer
McVeigh needed to search the vehicle.
Id. at 13-14. During cross-examination, Officer Dalbey testified that he never
asked Appellee to sign a consent to search form and never told Appellee that
he had a right to refuse his consent to search. Id. at 23-26.
Officer James McVeigh of the Upper Perkiomen Police Department
testified next. Id. at 30. He testified that, when he arrived at the traffic stop,
he parked his patrol vehicle in a small parking lot on a different street, where
it could not be seen from Appellee’s location. Id. at 41. Officer McVeigh
corroborated that Officer Dalbey asked Appellee if “his partner could search
the vehicle[,]” and that Appellee answered, “[Y]eah, you can search it, there’s
nothing in the vehicle.” Id. at 34. He also confirmed that only two officers –
himself and Officer Dalbey – were present at the time Appellee gave his
consent to search the Chrysler. Id. at 41.3 Officer McVeigh stated that neither
Officer Dalbey nor Appellee raised their voices, but, instead, they had “a
conversation like we’re having now” while standing “pretty close, as if you’re
having a normal conversation with somebody.” Id. at 35. Officer McVeigh
acknowledged that he also never told Appellee that he had the right to refuse
consent to search. Id. at 42-43. Officer McVeigh testified that, upon
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3 A third police officer, Officer Lavin, arrived after the vehicle search was
complete and Appellee was arrested. N.T., 8/22/2017, at 24.
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searching Appellee’s vehicle, he found three packages of heroin, one of which
was open, then handcuffed Appellee. Id. at 37, 40.
Appellee did not present any witnesses. Id. at 45.
At the conclusion of the hearing, the trial court permitted the parties to
file briefs, id. at 46, and, on September 27, 2017, the court granted Appellee’s
motion to suppress. This appeal followed.
The Commonwealth raises one issue on appeal:
Where a lawful traffic stop ended and devolved into a mere
encounter, did the [trial] court err in suppressing the fruits of a
voluntary, consensual search of the car [Appellee] was driving?
Commonwealth’s Brief at 4.
Our standard of review from a challenge to a ruling on a suppression
motion is as follows:
[O]ur role is to determine:
whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. . . . Where the
suppression court’s factual findings are supported by the
record, we are bound by these findings and may reverse
only if the court’s legal conclusions are erroneous. Where,
as here, the appeal of the determination of the suppression
court turns on allegations of legal error, the suppression
court’s legal conclusions are not binding on an appellate
court, whose duty it is to determine if the suppression court
properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to our plenary
review.
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654
(2010) (internal quotations and citations omitted). Our scope of
review is limited to the evidence presented at the suppression
hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1080 (2013).
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Commonwealth v. Mackey, 177 A.3d 221, 226 (Pa. Super.
2017).
Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa. Super. 2018).
Our standard of review when the Commonwealth appeals from a
suppression order is well-settled. . . . [W]hen an appellate court
reviews the ruling of a suppression court, we 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.
Commonwealth v. Rosas, 875 A.2d 341, 346 (Pa. Super. 2005).
“The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect citizens from unreasonable
searches and seizures, including those entailing only a brief detention.”
Commonwealth v. Reppert, 814 A.2d 1196, 1201 (Pa. Super. 2002) (en
banc) (citation omitted).
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.
Commonwealth v. Strickler, 757 A.2d 884, 888-89 (Pa. 2000) (footnotes
and citations omitted).
Our courts have delineated three different categories of police and
citizen interactions: mere encounters, investigative detentions, and custodial
detentions −
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[I]n 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[4], 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.
Id. at 889 (footnote omitted) (citations omitted); see Commonwealth v.
Thomas, 179 A.3d 77, 82 (Pa. Super. 2018) (“police officers may approach
citizens and ask them questions without violating the Fourth Amendment” and
“does not constitute a seizure”); see also Florida v. Bostick, 501 U.S. 429,
434 (1991) (police can approach people at random, ask questions, and seek
consent to search).
The level of police-citizen interaction may alter over the course of one
incident. For example, what begins as a mere encounter could escalate into
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4See Terry v. Ohio, 392 U.S. 1 (1968). A “Terry stop” is “[a]n investigative
detention [that] occurs when a police officer temporarily detains an individual
by means of physical force or a show of authority for investigative purposes.”
Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super. 2005) (citation
omitted).
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an investigative detention and then devolve into a mere encounter. See
Strickler, supra at 889-91.
After police finish processing a traffic infraction, the determination of
whether a continuing interaction constitutes a mere encounter or an
investigative detention centers upon whether the individual would objectively
believe that he was free to end the interaction and to refuse a request to
answer questions. See id. at 889-91 (“in the context of a traffic or similar
stop, once the purpose for the stop has been completed, the question arises:
Does the individual have objective reasons to believe that he is (or is not) free
to end the police/citizen encounter?”), 899 (“In evaluating a consensual
encounter that follows a traffic or similar stop, a central consideration will be
whether the objective circumstances would demonstrate to a reasonable
citizen that he is no longer subject to domination by police.”).
Here, the parties do not dispute that: (1) the initial interaction between
Appellee and Officer Dalbey was a proper traffic stop due to the Chrysler’s
illegally tinted windows and therefore a lawful investigative detention; and (2)
this initial investigative detention ended when Officer Dalbey told Appellee he
was free to leave and became a mere encounter. Commonwealth’s Brief at
14; Appellee’s Brief at 8, 11; N.T., 8/22/2017, at 7, 13-14; Trial Ct. Op. at 2,
6.
The Commonwealth contends that thereafter only a mere encounter
existed and Officer Dalbey thus did not need any suspicion that Appellee was
engaging in criminal activity when he requested Appellee’s consent to search
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the Chrysler. See Commonwealth’s Brief at 13-14.5 The Commonwealth
argues that Appellee’s “consent to search was valid largely for the same
reasons that the second interaction was not a detention, but rather a mere
encounter.” Id. at 19.
Nevertheless, the trial court found: “Given the definitive change in tone
and purpose from the ‘small talk’ initiated by [Appellee] after he was told he
could leave, to the pointed questioning foisted upon him by the officers, the
record in this case aptly reflects [Appellee] was, indeed, subject to an
investigative detention.” Trial Ct. Op. at 6. To resume an investigative
detention, Officer Dalbey would have needed to have a reasonable suspicion
that Appellee was engaging in criminal activity. See Strickler, 757 A.2d at
889-90. The trial court concluded that “[t]he Commonwealth failed to
establish that the police officers had the requisite reasonable suspicion to
support their investigatory detention.” Trial Ct. Op. at 6.
Appellee agrees with the trial court that “any questions that succeeded
the already completed traffic stop, particularly those of an investigative
capacity[,] rendered the encounter an unlawful detention. This is especially
apparent when Officer Dalbey asks about contraband in the vehicle.”
Appellee’s Brief at 9.
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5 Throughout its brief, the Commonwealth refers to Appellee’s consent as
“voluntary” or “voluntarily” given. See, e.g., Commonwealth’s Brief at 4-5,
11-13. It also concedes that the trial court did not address whether Appellee’s
consent was voluntary. See id. at 11 n.3.
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In its reply brief, the Commonwealth counters this contention, arguing
that “[p]olice are permitted to ask questions, including ‘investigative’
questions, and may make requests for consent to search, during a mere
encounter.” Commonwealth’s Reply Brief at 5.
Our inquiry is thereby threefold: (1) After Officer Dalbey informed
Appellee that he was “free to leave,” did the interaction between Appellee and
Officer Dalbey escalate into an investigative detention or remain a mere
encounter when Officer Dalbey asked Appellee additional questions? (2) If
the interaction again became an investigative detention, did Officer Dalbey
have reasonable suspicion of criminal activity? (3) Was Appellee’s consent to
search voluntary?6
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6 The trial court only articulated two issues, stating that “the underlying appeal
requires analysis of the following two questions”: “[f]irst, whether [Appellee]
was subjected to an investigatory detention; and second, whether the police
possessed the requisite reasonable suspicion to detain [Appellee].” Trial Ct.
Op. at 3. As the trial court found that Appellee was subject to an illegal
investigatory detention, it did not need to reach the question of whether
Appellee’s consent to search his vehicle was voluntarily given.
However, the level of police-citizen interaction and the voluntariness of
consent are distinct inquiries, albeit with overlapping analyses. See
Strickler, 757 A.2d at 888-89 (finding that a party agreed to a search by
police during a mere encounter does not automatically cause that party’s
consent to be voluntary: “[s]ince both the tests for voluntariness and for a
seizure centrally entail an examination of the objective circumstances
surrounding the police/citizen encounter to determine whether there was a
show of authority that would impact upon a reasonable citizen-subject’s
perspective, there is a substantial, necessary overlap in the analyses”);
Commonwealth v. Bell, 871 A.2d 267, 273 (Pa. Super. 2005) (en banc)
(“[w]here the underlying encounter is found to be lawful, voluntariness
becomes the exclusive focus”).
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`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.8
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8 . . . [T]here is no litmus-paper test for distinguishing a
consensual encounter from a seizure . . .
The test is necessarily imprecise, because it is designed to
assess the coercive effect of police conduct, taken as a whole,
rather than to focus on particular details of that conduct in
isolation. Moreover, what constitutes a restraint on liberty
prompting a person to conclude that he is not free to “leave”
will vary, not only with the particular police conduct at issue,
but also with the setting in which the conduct occurs.
Strickler, 757 A.2d at 889-90 (some footnotes and citations omitted; some
formatting added).
While there is no definitive list of factors for the court to consider when
determining if a police-citizen interaction is a mere encounter, where a
reasonable person would believe that he or she is free to leave, or an
investigative detention, “[t]he presence of an express admonition to the
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effect that the citizen-subject is free to depart is a potent, objective factor
that favors such conclusion.” Id. at 899 (emphasis added).7
In Commonwealth v. Randolph, 151 A.3d 170, 178 (Pa. Super.
2016), appeal denied, 168 A.3d 1284 (Pa. 2017), a police officer’s request for
a driver “to step out of the vehicle to the rear to receive a written warning”
before telling the driver he was free to leave did not affect the determination
that the interaction was a mere encounter after the express admonition that
the driver was allowed to depart. Other factors considered by this Court in
Randolph, in determining that the interaction after the “free to leave”
statement was a mere encounter include that the police officer “did not have
sirens on his vehicle[,]” that the “interaction” between the driver and police
was “calm and cordial[,]” and that “no physical contact” occurred.
Whether a patrol vehicle’s flashing (“emergency”) lights are switched on
is another factor that appellate courts have considered, finding activated lights
a signal to a reasonable person that he or she was not free to leave.
Commonwealth v. Livingstone, 174 A.3d 609, 625 (Pa. 2017) (two justices
joining; three justices concurring in part, dissenting in part; one justice
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7 We recognize that even when a driver is told he is free to leave, subsequent
interactions may still constitute a second seizure or investigative detention,
requiring reasonable suspicion of criminal activity. Commonwealth v.
Freeman, 757 A.2d 903, 907-08 (Pa. 2000). For example, a police officer
asking a driver to “step out of the vehicle” after stating that she was “free to
leave . . . constituted a greater show of authority than had previously been
made” and was therefore a factor in determining that the interaction was an
investigative detention. Id.
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dissenting) (“a reasonable person in [a]ppellant’s shoes would not have felt
free to leave after [t]rooper . . . pulled his patrol car, with its emergency lights
activated, alongside her vehicle”; held “[a]ppellant was seized and subjected
to an investigative detention”), 638-39, 641 (all three justices concurring in
part and dissenting in part agree on issue of activation of emergency lights
elevates encounter from mere encounter to investigative detention);
Commonwealth v. Hill, 874 A.2d 1214, 1219 (Pa. Super. 2005) (among
other factors, activation of overhead lights weighed towards encounter being
seizure and not mere encounter). Officers blocking a defendant’s vehicle from
moving has also been found to constitute a seizure, raising an encounter to
an investigative detention. Commonwealth v. Greber, 385 A.2d 1313,
1315-16 (Pa. 1978) (one justice concurring; two concurring in result; one
dissenting; one recusing). A “threatening” number of officers present and
“the display of a weapon by an officer” are also “[e]xamples of circumstances
that might indicate a seizure[.]” Commonwealth v. Guess, 53 A.3d 895,
900 (Pa. Super. 2012) (citations omitted).8
Ultimately, the “totality of the circumstances” test is a balancing test
that allows us to weigh coercive and noncoercive factors against each other.
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8 Some facts that might suggest that an investigative detention had ended,
such as police returning a driver’s documents and handing over a written
warning, may still be insufficient to reach such a conclusion, when other
factors overwhelm them, such as the presence of multiple officers surrounding
the vehicle and repeated questioning by an officer. Commonwealth v.
Sierra, 723 A.2d 644 (Pa. 1999) (equally divided court).
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See Commonwealth v. Moyer, 954 A.2d 659, 668 (Pa. Super. 2008) (en
banc). For example, in Moyer, this Court found that multiple elements
“support[ed] the belief that [the defendant] could not refuse the officer’s
requests for more information and to search his car[,]” including: that the
officer reintroduced questioning “within seconds” after returning the
defendant’s documents; that “[t]here were two armed, uniformed police
standing near” the defendant, “who was alone and isolated outside his car” at
night on a rural, unlit road; that “[p]olice had activated . . . their red and blue
flashing lights”; that police had initiated the traffic stop; that the officer
stopped the defendant as he was walking from the rear of his vehicle back to
the driver’s side door; and that the defendant was not informed that he did
not have to answer further questions. Id. at 664, 667-68.
Nevertheless, other facts indicated that only a mere encounter occurred
when the officer asked the defendant if there were any controlled substances
or paraphernalia in his car or on his person and requested to search the
defendant’s vehicle, including that the officer had already told the defendant
that he was free to leave and that the officer did not use a coercive tone nor
display his firearm. Id. This Court held that the former elements
“outweigh[ed]” the latter facts and that, when the defendant gave his consent,
the interaction still constituted an investigative detention. Id. at 667.
Here, considering the totality of the circumstances, we conclude that, at
the time that Appellee agreed to the search of his vehicle, in view of all
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surrounding circumstances, a reasonable person would have believed that he
was free to leave. See Strickler, 757 A.2d at 889-91.
The most “potent, objective factor” in reaching this conclusion is that
Officer Dalbey informed Appellee that he was “free to leave.” Strickler, 757
A.2d at 899; N.T., 8/22/2017, at 13; see also Moyer, 954 A.2d at 664, 667-
68 (factor weighed towards finding mere encounter).
Although Officer Dalbey had previously asked Appellee to step outside
the vehicle and asked for permission to search the vehicle while Appellee was
still outside, the request to exit the Chrysler occurred before the officer told
Appellee that he was free to leave. N.T., 8/22/2017, at 11; compare
Randolph, 151 A.3d at 178 (request to exit before permission to leave) with
Freeman, 757 A.2 at 907 (request to exit after permission to leave).
Additionally, although Officer Dalbey questioned Appellee, it was only
after Appellee initiated a conversation about the officer’s police experience,
and his own father’s service as a Philadelphia police officer. The officer did
not repeatedly question Appellee. His tone was conversational and
nonthreatening. He had no physical contact with Appellee. Appellee was
never placed in physical restraints at any time prior to the discovery of the
heroin. N.T., 8/22/2017, at 35, 40; see generally id.; see also Randolph,
151 A.3d at 181-82 (where none of these factors exist, interaction is mere
encounter); Moyer, 954 A.2d at 668 (no coercive tone supported finding of
mere encounter); see also Strickler, 757 A.2d at 889 (“instances of police
questioning involving no seizure or detentive aspect” – i.e. mere encounters
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– are permitted); Thomas, 179 A.3d at 82 (police questioning alone does not
constitute seizure).
Officer Dalbey had also turned off the flashing lights in his patrol vehicle
prior to giving Appellee the warning notice, and they were still off when
Appellee agreed to the search. N.T., 8/22/2017, at 11; cf. Livingstone, 174
A.3d at 625 (activated flashing lights a signal to a reasonable person that he
or she was not free to leave and therefore subject to an investigative
detention); Moyer, 954 A.2d at 667 (activated flashing lights were a factor in
finding investigative detention and not mere encounter); Hill, 874 A.2d at
1219 (same).
Neither Officer Dalbey’s nor Officer McVeigh’s patrol vehicles blocked
Appellee’s vehicle: Officer Dalbey’s vehicle was behind Appellee’s; Officer
McVeigh’s vehicle was parked in a lot on a different street and could not even
be seen from Appellee’s location. N.T., 8/22/2017, at 7, 41; cf. Greber, 385
A.2d at 1315-16. Only two officers were present when Appellee agreed to the
search of the Chrysler, N.T., 8/22/2017, at 41, not a “threatening” number of
officers, and there was no testimony that either officer pulled or drew attention
to his firearm. Cf. Guess, 53 A.3d at 900 (“[e]xamples of circumstances that
might indicate a seizure”); see also Moyer, 954 A.2d at 668 (no display of
weapons weighed towards finding mere encounter). Furthermore, Appellee
chose to return to Officer Dalbey and to resume their conversation; Officer
Dalbey did not stop Appellee from returning to his vehicle. Compare N.T.,
8/22/2017, at 13-14 with Moyer, 954 A.2d at 667 (defendant walked from
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rear of car to car door when officer stopped him; element weighing towards
finding investigative detention).
Additionally, in considering “the setting in which the conduct occur[red,]
Strickler, 757 A.2d at 890 n.8, Appellee was not alone, as he had two
passengers with him, and was not in an isolated, unlit location, since he had
pulled into the “well lit” parking lot of a minimart. Compare N.T., 8/22/2017,
at 7-8 with Moyer, 954 A.2d at 667-68 (defendant being alone in an isolated
location weighed towards finding investigative detention).
Consequently, under the “totality of the circumstances” test we find no
evidence of any coercive factors after the conclusion of the traffic stop.
Accordingly, we find that an individual in Appellee’s situation would have
objective reasons to believe that he was free to leave and end the police-
citizen interaction. Strickler, 757 A.2d at 889-91. We conclude that, after
Officer Dalbey informed Appellee that he was free to leave, the entirety of
their subsequent interaction prior to Appellee’s grant of consent constituted a
mere encounter, making Officer Dalbey’s further questioning of Appellee
permissible without any suspicion of criminal activity. See id. at 889 (mere
encounters need not be supported by any level of suspicion in order to
maintain validity); see also Thomas, 179 A.3d at 82 (police officers
approaching citizens and asking them questions does not constitute seizure);
Bostick, 501 U.S. at 434 (same).
Appellee suggests that if we “accept the Commonwealth’s position that
the instant case demonstrates a ‘mere encounter’ . . . the matter should be
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remanded to the trial [c]ourt for findings on” whether Appellee’s “consent to
search was ultimately freely given.” Appellee’s Brief at 11.
However, as already noted, our standard of review is whether the trial
court legally erred, not whether it abused its discretion. Thran, 185 A.3d at
1043. Additionally, although Appellee suggests that “[a]n additional
evidentiary hearing may also be required[,]” (Appellee’s Brief at 11), Appellee
does not specify what additional useful evidence could be ascertained at
another hearing.
In addition, Appellee argued during the suppression hearing that his
consent was not “obtained” in a “knowing, voluntary, and intelligent manner.”
N.T., 8/22/2017, at 3. Thus, Appellee himself raised the issue of voluntary
consent. We conclude that the Commonwealth produced sufficient evidence
to establish voluntary consent in the totality of circumstances. Appellee did
not present evidence to rebut the evidence which the Commonwealth had
already produced. See Commonwealth v. Moore, 279 A.2d 179, 183 (Pa.
1971). Therefore, we do not need to remand to the trial court.
Therefore, we will now address the issue of whether Appellee voluntarily
consented to the search of the Chrysler, based on the existing record, such
that the trial court properly granted the motion to suppress.
“In connection with such inquiry, the Commonwealth bears the burden
of establishing that a consent is the product of an essentially free and
unconstrained choice — not the result of duress or coercion, express or
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implied, or a will overborne — under the totality of the circumstances.”
Strickler, 757 A.2d at 901.
This analysis overlaps with the assessment of the validity of the citizen-
police interaction giving rise to the consent and also involves a totality of the
circumstances test, balancing noncoercive and coercive factors. See id. at
888-89, 901-02 (“reasons supporting the conclusion that [the defendant] 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”); Commonwealth v. Valdivia, 145 A.3d 1156, 1166 (Pa. Super.
2016) appeal granted, 165 A.3d 869 (Pa. 2017) (citations and internal
quotation marks omitted) (when there is mixture of coercive and non-coercive
factors at time of [police] request to search, court must balance factors).
For example, whether the defendant had been informed by police that
he was free to leave, whether police returned the defendant’s documentation,
whether there was “evidence of police abuses, aggressive tactics, coercive
language, coercive tone of voice, physical contact, or the use of physical
restraints at any time during the detention,” and whether the location was
open, public, and well-lighted are major factors in determining the
voluntariness of the defendant’s consent to search. Id.; see Randolph, 151
A.3d at 181-82. Here, there is no dispute that Officer Dalbey informed
Appellee that he was free to leave. (See N.T. Hearing on Motion to Supress,
8/22/17, at 13).
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We view the evidence presented at the suppression hearing, in the
totality of circumstances. We consider all of the noncoercive factors noted in
our analysis finding this police-citizen interaction to be a mere encounter.
These include that Officer Dalbey told Appellee that he was free to leave prior
to Appellee’s agreeing to the search, N.T., 8/22/17, at 13-14. He had returned
Appellee’s documentation. See id. at 22. He had not engaged in any abuse,
aggressive tactics, coercive language, coercive tone of voice, or physical
contact, id. at 35, or used physical restraints. See id. at 40. Accordingly, we
hold that Appellee’s consent was freely and voluntarily given and that,
consequently, Officer McVeigh’s search of Appellee’s vehicle was proper. See
Valdivia, 145 A.3d at 1166; Randolph, 151 A.3d at 181-82.
We conclude that the drugs were legally seized from the vehicle.
Therefore, we are constrained to hold that the trial court improperly granted
Appellee’s motion to suppress. Thus, we reverse the order granting Appellee’s
suppression motion. Accordingly, we remand this case for trial.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/18
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