Com. v. DeHart

• Decision Date: 19 January 2000
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Mark DeHART, Appellee. Commonwealth of Pennsylvania, Appellant, v. Ricky Keister, Appellee.
• Court: Pennsylvania Superior Court

745 A.2d 633

COMMONWEALTH of Pennsylvania, Appellant, v. Mark DeHART, Appellee.

Commonwealth of Pennsylvania, Appellant, v. Ricky Keister, Appellee.

Superior Court of Pennsylvania.

Submitted August 16, 1999.

Filed January 19, 2000.

Before CAVANAUGH, LALLY-GREEN and BROSKY, JJ.

BROSKY, J.

¶ 1 This is an appeal by the Commonwealth from an order granting Appellees' suppression motion. The Commonwealth raises two questions for our consideration, which we restate as follows: when a police vehicle pulls alongside a vehicle which was already stopped of its own accord, is the ensuing questioning of the occupants a mere encounter or an investigative detention; does an investigative detention occur when a police officer gets out of his vehicle and approaches a vehicle, which was stopped of its own accord, to converse with the occupants? We affirm. ¶ 2 The facts relevant to our decision today, set forth consistent with the standard of review recited infra, is as follows: shortly after midnight on February 8, 1998, Pennsylvania State Troopers Michael Hutson and James Hansel were on patrol when they received a radio report that there was a "suspicious vehicle" in the village of New Columbia and that the vehicle might be a blue Camaro or Trans Am. The radio report did not cite a source for the information and stated only that the vehicle was being driven in a slow fashion. Upon arriving on the main street in New Columbia, the troopers came upon a Trans Am moving in front of them and then observed the vehicle turn around. After turning their vehicle to follow the Trans Am, the troopers found the vehicle pulled up to the berm in front of a house with the engine still running.¹ They also observed an individual standing outside the vehicle in apparent conversation with one of the occupants. The troopers pulled their vehicle up next to the subject vehicle, whereupon Trooper Hutson, sitting in the passenger seat, rolled down the window— prompting the driver of the vehicle, Appellee Keister, to do the same—and asked him "what's going on here?" Mr. Keister, according to Trooper Hutson, responded in a soft-spoken manner and avoided eye contact with him. Mr. Keister's actions aroused the suspicions of Trooper Hutson, who then stated to Trooper Hansel, "something's not right here, ... I'm going to get out of the car and see what's going on here." Trooper Hutson then proceeded to get out of the cruiser, as did Trooper Hansel.

¶ 3 Trooper Hutson went around to the passenger side of the vehicle while Trooper Hansel began questioning Keister. Upon conversing with Keister at closer range, Trooper Hansel was able to smell alcohol on Keister's breath. It also appeared to Trooper Hansel that Keister might not be twenty-one years of age. Trooper Hansel then asked Keister for his driver's license, which, upon inspection, confirmed the fact that Keister was under 21 years of age. Trooper Hansel then asked Mr. Keister to exit the vehicle and directed him through two field sobriety tests, both of which he failed.

¶ 4 Meanwhile Trooper Hutson was busy with Appellee Mark DeHart, who had been situated in the passenger seat of the Trans Am. After speaking briefly with DeHart, Trooper Hutson was able to detect alcohol on his breath as well. DeHart was asked to exit the vehicle and was told that he would be transported to Evangelical Hospital. Trooper Hutson then subjected Mr. DeHart to a pat-down search. While conducting the pat-down search Trooper Hutson was able to feel a marijuana pipe that was "clearly noticeable to [his] touch." Trooper Hutson reached into DeHart's pocket and removed the pipe. A bag of substance suspected of being marijuana was also discovered. A field test was then performed on the substance, which provided a positive test result for marijuana. Both Appellees were arrested and taken to the hospital for analysis of blood alcohol content. Charges were later filed against both parties.

¶ 5 Responding to their arrest, Appellees filed an omnibus motion seeking suppression of all evidence resulting from the police encounter. A hearing on the suppression motion was held on December 3, 1998. After the conclusion of the hearing, the Honorable Louise Knight granted Appellees' motion and ordered the evidence resulting from the encounter suppressed. The Commonwealth then filed the within appeal.

¶ 6 In reviewing a Commonwealth appeal 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.

Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 880-81 (1998). (Citations omitted.)

¶ 7 The trial court states that determining the propriety of the suppression begins with an analysis of the tip received by the police. The court then concludes that the tip received could not support a Terry² stop. We agree with the trial court that the tip would not support a Terry stop. Unfortunately, although we agree with the trial court's assessment in this regard, our agreement renders the issue a "red herring." It is clear that the troopers did not possess information that would justify a stop. However, this is relevant only to the extent the troopers "stopped" Appellees. Since the car the Appellees were situated in was already stopped when the troopers pulled up, Appellees were not "stopped" for search and seizure purposes. Nevertheless, an encounter or interaction ensued that escalated into a full arrest and must be scrutinized to see if it passes constitutional muster.

¶ 8 "Interaction" between citizens and police officers, under search and seizure law, is varied and requires different levels of justification depending upon the nature of the interaction and whether or not the citizen is detained. Such interaction may be classified as a "mere encounter," an "investigative detention," or a "custodial detention." A "mere encounter" can be any formal or informal interaction between an officer and a citizen, but will normally be an inquiry by the officer of a citizen. The hallmark of this interaction is that it "carries no official compulsion to stop or respond." Commonwealth v. Allen, 452 Pa.Super. 200, 681 A.2d 778, 782 (1996) (citing Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)).

¶ 9 In contrast, an "investigative detention," by implication, carries an official compulsion to stop and respond, but the detention is temporary, unless it results in the formation of probable cause for arrest, and does not possess the coercive conditions consistent with a formal arrest. Since this interaction has elements of official compulsion it requires "reasonable suspicion" of unlawful activity. Id. In further 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. Id.

¶ 10 As indicated above, it appears undisputed that, when the interaction between the troopers and Appellees began, there was a lack of reasonable suspicion that would justify either a traffic stop or an investigative detention. However, as the Commonwealth has suggested, the vehicle Appellees were occupying was already stopped when the troopers pulled alongside it. We are unaware of any search and seizure law that treats a police officer approaching a stopped vehicle as a "traffic stop." Further, since a mere encounter between police officer and citizen requires no suspicion at all, the key to analyzing the within case is a determination of the point in time when Appellees were subjected to an investigative detention and whether, at that time, there existed sufficient justification for that classification of a detention.

¶ 11 After the initial questioning of Appellee Keister by Trooper Hutson from the police cruiser, Trooper Hansel exited the police car and began questioning Keister while Hutson began questioning DeHart. Almost immediately thereafter, Trooper Hansel was able to detect an odor of alcohol. Appellee Keister was then asked for his driver's license, which confirmed that he was, in the least, drinking underage and possibly had been operating a motor vehicle under the influence of alcohol. At that point Appellee Keister was asked to exit the vehicle. The trial court states that "when the officers then asked the Defendants to get out of the car, matters had clearly escalated to an investigatory detention for which there had to be reasonable suspicion." Trial Ct. Op. at p. 5. We agree. However, at the time the Appellees were asked to step out of the vehicle, there was at least reasonable suspicion of criminal activity, namely underage drinking and, possibly, driving while under the influence, if not probable cause for an arrest. Thus, to affirm the order of suppression the focus must be upon a point earlier in time.

¶ 12 In contrast to the suspicion acquired during the face-to-face encounter, we are of the opinion that at the time the officers exited their cruiser and began a more intensive questioning of Appellees, they lacked a reasonable suspicion of criminal activity such as would support an investigative detention. As indicated by the trial court, the tip received over the police radio was too vague, and unsupported by indicia of reliability, to provide reasonable suspicion of criminal activity for an investigative detention. Additionally, the initial questioning of Appellees yielded no tangible information that would provide "reasonable suspicion" of criminal activity. Rather, as testified to by Trooper Hutson, he believed that Keister was acting suspiciously because he avoided eye contact and was speaking softly. As indicated by the trial court, Commonwealth v. Sierra, 555 Pa. 170, 723 A.2d 644 (1999),...