Com. v. Kendall

• Citation: 976 A.2d 503,2009 PA Super 100
• Decision Date: 29 May 2009
• Docket Number: No. 1031 MDA 2008,1031 MDA 2008
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Gregory Philip KENDALL, Appellant.
• Court: Superior Court of Pennsylvania

976 A.2d 503

2009 PA Super 100

COMMONWEALTH of Pennsylvania, Appellee v. Gregory Philip KENDALL, Appellant.

No. 1031 MDA 2008

Superior Court of Pennsylvania.

Submitted January 5, 2009.

Filed May 29, 2009.

Clinton T. Barkdoll, Waynesboro, for appellant.

Jeremiah D. Zook, Asst. Dist. Atty., Chambers, for Com., appellee.

BEFORE: STEVENS, KLEIN and KELLY, JJ.

OPINION BY KLEIN, J.:

¶ 1 Gregory Kendall appeals from the judgment of sentence imposed by the Franklin County Court of Common Pleas after he was convicted of driving under the influence of alcohol ("DUI"), 75 Pa.C.S.A. § 3802(b). Kendall argues that the trial court erred in failing to suppress all evidence supporting the DUI conviction because the arresting police officer lacked reasonable suspicion. Because we find that the level of interaction between Kendall and the police officers began as a mere encounter, where reasonable suspicion is not required, we affirm.¹

¶ 2 At approximately 1:15 a.m. on September 17, 2007, Troopers Long and Dubbs were on routine patrol when they came upon a silver BMW coup traveling in front of their patrol car on Lighthouse Road. After following the car for approximately two or three minutes at a distance of fifty to one hundred feet, the driver activated his turn signal and pulled off to the shoulder of the road. Because Lighthouse Road is a two-lane road with a narrow shoulder, the driver pulled the car partially onto a property that bordered the road; there were no driveways, homes, or stores nearby.

¶ 3 Trooper Long pulled his patrol car behind Kendall's BMW, and both cars remained idle for about one minute. After running the license plate number of the BMW, Trooper Long activated his overhead lights on his patrol car, exited his patrol car and approached the vehicle. Trooper Long asked Kendall why he suddenly pulled over, and Kendall replied that it was to let the patrol car pass. While at the vehicle, Trooper Long observed an open can of beer on the passenger seat and smelled alcohol on Kendall's breath. Kendall also exhibited other indicia of intoxication: slurred speech, glassy eyes and deliberate movements. After Kendall failed a field sobriety test, he was arrested and taken to the hospital for a blood alcohol test that yielded a result of .14%.

¶ 4 Kendall filed an omnibus pre-trial motion to suppress all evidence obtained from the arrest and to dismiss the charges. In his motion Kendall argued that the stop was not supported by reasonable suspicion.

¶ 5 At the suppression hearing, Trooper Long testified that Kendall slowed down, put on his right turn signal, and pulled over to the narrow shoulder of the road. He left his turn signal on. N.T. Suppression, 3/27/08, at 7. Trooper Long testified that there was no driveway or anything there; "there was no reason for him to be pulling off." Id. at 5. Trooper Long conceded that he had no reason to stop Kendall, and that Kendall was driving within the posted speed limit within the marked lines on the road. Furthermore, Trooper Long testified that he activated his overhead lights so that the Kendall would be alerted that a police officer was approaching, and so that other passing vehicles would be alerted that there were vehicles stopped along side of the road. Trooper Long testified that one of his thoughts was "possible vehicle failure." Id. at 7. When Trooper Long approached the vehicle, he asked Kendall if he was okay, and then he noticed Kendall's slurred speech, a strong odor of alcohol, and an opened can of Budweiser beer on the passenger seat. Id. at 8-9.

¶ 6 Ultimately, the court denied the motion to suppress the evidence. Kendall was convicted of DUI and sentenced to a term of incarceration of twelve to sixty months.

¶ 7 On appeal, Kendall argues that his encounter with Trooper Long amounted to an investigative detention unsupported by reasonable suspicion. The Commonwealth counters that the interaction between Trooper Long and Kendall was in fact a mere encounter, which requires no level of suspicion. See Johonoson, 844 A.2d at 561.² We believe the record in this case supports the trial court finding that this was just a mere encounter where the officer was trying to determine what was going on and whether the motorist might need assistance. Our Court has held that police officers have a duty to render aid and assistance to those they believe are in need of help. Additionally, we have stated that triggering emergency lights or initiating interaction with a driver does not necessarily shift the interaction between an officer and a driver from a mere encounter to an investigatory detention. See Johonoson, 844 A.2d at 556; see also Commonwealth v. Collins, 950 A.2d 1041 (Pa.Super.2008) (en banc) (initial interaction between state trooper and defendant, a vehicle passenger, following trooper's approach of vehicle in order to conduct a safety check of its passengers after noticing vehicle parked legally after sundown at roadside location, was mere encounter, and thus did not need be supported by any level of suspicion; trooper parked twenty feet away from the rear of the vehicle, trooper testified that no outward sign of distress emanated from the vehicle, that he did not observe anything that would lead him to believe that illegal activity was occurring, and that the occupants of vehicle were not scrambling around as if they were trying to get away because trooper was approaching them, and trooper approached the vehicle requesting information, asking if "everyone was ok."); Commonwealth v. Conte, 931 A.2d 690 (Pa.Super.2007).

¶ 8 In Johonoson, a state trooper observed a slow-moving vehicle traveling with its flashers activated on rural a road at approximately 3:00 a.m. 844 A.2d at 558-59. Without signal, the driver pulled his vehicle off to the side of road, at which point the officer followed behind. Id. at 559. The trooper activated his overhead emergency lights, exited his car, and approached the driver. Id. When the trooper approached the driver he immediately noticed signs of intoxication, and subsequently arrested the driver for a DUI offense. Id.

¶ 9 The defendant filed a motion to suppress the evidence of his intoxication, arguing that the activation of the officer's overhead emergency lights would have made a reasonable person in his position believe he was not free to leave and, therefore, he was subject to an investigatory detention. This Court upheld denial of the motion, reasoning that:

By pulling over to the side of the road at 3:00 in the morning on a rural road, after driving slowly with his hazard lights on, Appellant should have had reason to expect that a police officer would pull over and attempt to render aid ... Appellant is exactly the sort of person whom [an officer] has a duty to assist. The fact that [the officer] activated his lights in the course of doing so does not turn the interaction into an investigative detention. Rather, it remained a mere encounter for which no suspicion of illegal activity was required.

Id. at 562 (emphasis added).

¶ 10 This Court reached a similar conclusion in Conte, supra. There, an officer received a dispatch regarding a disabled vehicle on the shoulder of a road. When the officer arrived at the scene, he pulled behind the vehicle and activated his overhead emergency lights to alert passing vehicles of his presence. The officer approached the driver who had already exited the vehicle, and asked him if he needed help. The driver responded that he had a flat tire. After noticing signs of intoxication while speaking with the driver, the officer decided to administer field sobriety tests, which the driver failed; a blood test later revealed a .23% BAC. The driver was arrested and convicted.

¶ 11 In Conte, this Court affirmed trial court's denial of the motion to suppress. Relying on the rationale of Johonoson, we explained that "the evidence introduced at the suppression hearing shows that a reasonable person in [the driver's] position would have understood [the officer's] arrival as an act of official assistance, and not as the start of an investigative detention." 931 A.2d at 693; see also Collins, 950 A.2d at 1046-47 (explaining that when considering whether interaction with officer is mere encounter or investigatory detention, "the focal point ... 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."). The Conte Court further reasoned that police officers have a duty to society to serve and protect their communities. This extends beyond enforcement of the Crimes Code or Motor Vehicle Code and includes the duty to stop and help citizens who are, or appear to be, in distress. Conte, 931 A.2d at 693.

¶ 12 It is true that there are cases where the trial court found that the stop was not just a mere encounter to render assistance, and the officer needed reasonable suspicion of criminal activity to detain a vehicle. In those cases, it was found that the driver would not reasonably believe he or she was free to leave or terminate the encounter with the officer. The activation of the officer's emergency lights when the officer is approaching the driver's vehicle may be a factor in what a reasonable driver would believe. Therefore, there would be record support for a trial court finding that the interaction between the officer and the driver amounts to an investigatory detention which requires reasonable suspicion.

¶ 13 These are fact-sensitive situations and in general we must defer to the trial court determination. The cases that hold there was an investigative detention are distinguishable from this case, particularly because the trial court did not agree that the stop was to render assistance. In Commonwealth v. Hill, 874 A.2d 1214 (Pa.Super.2005), police officers on patrol observed a pickup truck driving slowly. The officers were closely following...