Com. v. Beasley

• Court: Pennsylvania Superior Court
• Writing for the Court: JOHNSON, J.
• Citation: Com. v. Beasley, 761 A.2d 621 (Pa. Super. Ct. 2000)
• Decision Date: 23 October 2000
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Oliver James BEASLEY, Appellee.

761 A.2d 621

COMMONWEALTH of Pennsylvania, Appellant, v. Oliver James BEASLEY, Appellee.

Superior Court of Pennsylvania.

Argued April 12, 2000.

Filed October 23, 2000.

Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellant.

Fred G. Rabner, Pittsburgh, for appellee.

Before: JOHNSON, HUDOCK, and BROSKY, JJ.

JOHNSON, J.:

¶ 1 The Commonwealth appeals from the trial court's order suppressing six kilos of cocaine police recovered from a backpack in the possession of defendant Oliver James Beasley. The Commonwealth charged Beasley with two violations of the Controlled Substance, Drug, Device and Cosmetic Act, and now certifies that the order granting suppression has effectively terminated the prosecution. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (Pa.1985). See also Pa. R.A.P. 311(d), 904(e). We conclude that the trial court correctly suppressed the evidence, as the police conducted a seizure of Beasley's person without reasonable suspicion of Beasley's involvement in criminal activity. Accordingly, we affirm.

¶ 2 The facts surrounding this case are set forth in the trial court opinion of the Honorable Donna Jo McDaniel, as follows:

Off-duty Allegheny County police officer, A.J. Marx, testified that on July 27, 1998, he was in a downtown Pittsburgh restaurant with his wife and child when he observed a well-dressed, black male, whom he identified as [Beasley], seated at the restaurant bar approximately ten feet away. After about ten minutes, another male walked into the restaurant dressed a little bit shabbily and carrying a black backpack and purchase tags were still on the backpack. This individual sat down beside [Beasley] at the bar and set the backpack down between the two of them. After about five minutes of conversation, the second male stood up and said I have to check my meter to make sure I don't get tagged or towed and proceeded to leave the restaurant while leaving the backpack on the floor.

The police officer could not see where the second male went after leaving the restaurant. [Beasley] waited about five minutes and then paid his bill, picked up the bag and started walking toward the door. At that point, the officer also walked toward the door and was able to reach it before [Beasley] did. The officer displayed his badge and asked [Beasley] if [he] would talk with him. [Beasley] said sure and the officer asked him to step back into the restaurant area to talk. [Beasley] started walking back and dropped the bag. The officer motioned to the bag and told [Beasley] to bring it with him. At that point, [Beasley] pushed the officer aside and ran from the restaurant leaving the bag. After five minutes, the officer opened the bag and discovered what was later determined to be cocaine.

Trial Court Opinion, 11/9/99, at 2-3. Subsequently, Beasley turned himself over to police on advice of counsel and the Commonwealth commenced this action. In his omnibus pre-trial motion, Beasley sought suppression of the contents of the backpack, contending that police discovery of the contraband was the result of an illegal seizure. The trial court agreed, reasoning that Officer Marx, upon directing Beasley to bring the backpack after the initial encounter, had conducted an investigatory detention. Id. at 3. The court concluded that the Commonwealth's evidence failed to establish reasonable suspicion necessary for such a detention and so ordered the evidence suppressed. Id. ¶ 3 On appeal, the Commonwealth raises the issue of [w]hether the trial court erred in granting suppression? Brief for Appellant at 4. Our scope of review when considering the Commonwealth's appeal of a suppression order is narrow:

[W]e must consider only the evidence of the ... [defendant's] witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. If the evidence supports the factual findings of the trial court, we are bound by such findings, and we may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Bowersox, 450 Pa. Super. 176, 675 A.2d 718, 719-20 (1996) (citations and internal quotation marks omitted). Thus, to determine the propriety of the court's order in this case, we must discern whether the court's findings are supported by the evidence adduced at the suppression hearing and, if so, whether the court concluded correctly that Officer Marx effected an investigatory detention without reasonable suspicion. See id.

¶ 4 The Pennsylvania Supreme Court has been vigilant in the protection of the right to privacy guaranteed by Article I, Section 8 of our state Constitution. On repeated occasions, the Court has admonished that:

The seriousness of criminal activity under investigation, whether it is the sale of drugs or the commission of a violent crime, can never be used as justification for ignoring or abandoning the constitutional right of every individual in this Commonwealth to be free from intrusions upon his or her personal liberty absent probable cause.

Commonwealth v. Polo, ___ Pa. ___, ___, 759 A.2d 372, 376 (2000) (quoting Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 775-76 (1996)). To secure the right of citizens to be free from such 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. Our Supreme Court has defined three forms of police-citizen interaction: a mere encounter, an investigative detention, and a custodial detention. See Commonwealth v. Boswell, 554 Pa. 275, 721 A.2d 336, 340 (1998). 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. Commonwealth v. Riley, 715 A.2d 1131, 1134 (Pa.Super.1998), appeal denied, 558 Pa. 617, 737 A.2d 741 (1999). No constitutional provision prohibits police officers from approaching a citizen in public to make inquiries of them. Boswell, 721 A.2d at 339-40. However, [i]f the police action becomes too intrusive, a mere encounter may escalate into an investigatory [detention] or seizure. Id. To determine whether a mere encounter has risen to the level of an investigatory detention, we must discern whether, as a matter of law, police have conducted a seizure of the person involved. See Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117, 1119 (1998).

To decide whether a seizure has occurred, we apply the following objective test: a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. In applying this test, it is necessary to examine the nature of the encounter. Circumstances to consider include, but are not limited to, the following: the number of officers present during the interaction; whether the officer informs the citizen they are suspected of criminal activity; the officer's demeanor and tone of voice; the location and timing of the interaction; the visible presence of weapons on the officer; and the questions asked. Otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Boswell, 721 A.2d at 340 (internal citations, quotation marks and brackets omitted). See also Polo, ___ Pa. at ___, 759 A.2d at 379 (Saylor, J., concurring and dissenting). Thus, the focal point of our inquiry must be whether, considering the circumstances surrounding the incident, a reasonable [person] innocent of any crime, would have thought he was being restrained had he been in the defendant's shoes. See Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 773 (1996) (quoting Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835, 840 (1977)).

¶ 5 In this case, all parties agree that the incident between Officer Marx and Beasley began as a mere encounter. The trial court concluded, however, that the encounter escalated into an investigatory detention, and hence a seizure, when, after agreeing to speak with Marx, Beasley dropped the backpack and Marx told him to bring the bag with him while they talked. Trial Court Opinion, 11/9/99, at 3. The Commonwealth argues that no seizure occurred because the circumstances surrounding Marx's approach to Beasley were non-coercive. Specifically, the Commonwealth points out that Marx was neither armed nor in uniform, and that Marx spoke in a normal tone of voice without issuing commands.

¶ 6 The Commonwealth's assertions notwithstanding, we conclude that the totality of the circumstances was sufficiently coercive that a reasonable [person] innocent of any crime, would have thought he was being restrained, Matos, 672 A.2d at 773, and hence, would not have felt free to terminate the encounter. Initially, Officer Marx displayed his badge and identified himself as a police officer. N.T. Suppression Hearing, 8/30/99, at 9. Marx then positioned himself immediately adjacent to Beasley, physically between Beasley and the exit to the restaurant. Id. at 28-29. When Beasley dropped the backpack to the floor of the restaurant, Marx told him to bring the backpack with him. Id. at 10. Such a directive, issued after Marx's display of his badge, was clearly a command issued under color of official authority. Moreover, Marx's evident interest in the backpack clearly suggests suspicion regarding its contents and Beasley's relationship to those contents. Because Marx's command both exercised official authority and implied Beasley's participation in illegal activity, it caused the encounter to escalate to an investigatory detention. At that point in time, Beasley was legally seized. See Commonwealth v. Martin, 705 A.2d 887, 891 (Pa.Super.1997) (concluding that mere encounter with plain-clothes...