Com. v. Moyer, No. 345 MDA 2006.

• Decision Date: 01 August 2008
• Docket Number: No. 345 MDA 2006.
• Citation: 954 A.2d 659
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Terry E. MOYER, Appellee.
• Court: Pennsylvania Superior Court

954 A.2d 659

COMMONWEALTH of Pennsylvania, Appellant v. Terry E. MOYER, Appellee.

No. 345 MDA 2006.

Superior Court of Pennsylvania.

Argued September 6, 2007.

Filed August 1, 2008.

Michelle H. Sibert, Asst. Dist. Atty., for Com., appellant.

Stephen O. Fugett, Carlisle, for appellee.

BEFORE: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN, LALLY-GREEN, TODD,^* BOWES, GANTMAN, McCAFFERY^** and DANIELS,^*** JJ.

OPINION BY BOWES, J.:

¶ 1 The Commonwealth appeals¹ from the January 24, 2006 order suppressing evidence seized following a traffic stop. As we conclude that Appellee, Terry E. Moyer, was subjected to an investigatory detention that was not supported by reasonable suspicion, we affirm.

¶ 2 At approximately 11:20 p.m. on June 28, 2005, then-Corporal Jonathan Mays of the Pennsylvania State Police was patrolling on Mill Street in South Middleton Township, Cumberland County. Both he and Trooper Elmer Hertzog were in full uniform in a marked cruiser. Officer Mays observed Appellee's vehicle, which had "one tail light" with "a hole in it, and it was exposing white light to the rear, a good amount of white light to the rear." N.T. Suppression, 1/23/06, at 7. Officer Mays initiated a traffic stop by activating his emergency lights, and Appellee pulled his vehicle over to the berm. Since it was night, the police officer positioned a bright spot light from atop the cruiser so as to "light the interior of [Appellee's] vehicle" to ensure that he could safely approach it. Id. at 8. At that time, Officer Mays observed "a lot of movement between the driver and the passenger, it was all focused down towards the floor boards and toward the passenger side of the vehicle." Id.

¶ 3 When Officer Mays approached Appellee's vehicle, he informed Appellee about the reason for the stop and requested a driver's license and registration card. After Appellee provided the documentation, Officer Mays started inquiring about his destination. Appellee responded that he had come from and was returning to Carlisle, Pennsylvania. When pressed for more details, Appellee stated that he had stopped at the Sheetz store in Mount Holly. Since Appellee appeared nervous and displayed bloodshot eyes, Officer Mays initiated a search for his criminal history, and that "inquiry showed that there was a fingerprint at one time for Act 64, some kind of encounter with Act 64."² Id. at 10. Officer Mays discovered that Appellee's encounter with that act consisted of an arrest for marijuana possession. Id. at 11, 24.

¶ 4 Officer Mays prepared a warning regarding the taillight, returned to the vehicle, ordered Appellee to exit the vehicle, and directed him to the rear of the car. Officer Mays showed him the hole in the taillight, told him to repair it, and gave him a warning card. Trooper Hertzog was standing beside Officer Mays at the rear of the car, and both were armed. At that point, Appellee was instructed that he was free to leave, but as Appellee reached the driver's door of his vehicle, Officer Mays called "his name out" and "asked if he mind[ed]" if the officer asked him a few questions. Id. at 10-11. Officer Mays did not inform Appellee that he did not have to answer the questions. Id. at 28.

¶ 5 After Appellee agreed to respond, Officer Mays revealed that he was aware of Appellee's "arrest for Act 64 in the past" and had observed the movements in the car after the traffic stop. Id. at 11. He then asked Appellee if there were any drugs or paraphernalia in the car. After Appellee responded negatively, Officer Mays continued questioning Appellee as to whether he had any controlled substances or paraphernalia on his person. Appellee denied possessing anything on his person. Then, Officer Mays "asked him if [he] could check his vehicle to make sure that was the case." Id. at 11. Appellee, who was not told that he could refuse that request, id. at 34, consented to the search of both his person and his vehicle.

¶ 6 A crack pipe was discovered on Appellee's person and another crack pipe was located in the car. Appellee then admitted to Trooper Hertzog that he had recently smoked crack cocaine. He was arrested and transported to Carlisle Hospital to have his blood drawn, which tested positively for the presence of cocaine. Appellee was given his Miranda warnings for the first time at the booking center for his DUI charge. Id. at 56.

¶ 7 On August 3, 2005, Appellee was charged with one count each of possession of drug paraphernalia and driving under the influence of a controlled substance. Appellee filed an omnibus pretrial motion to suppress all evidence seized as a result of the traffic stop. At the suppression hearing on January 23, 2006, the Commonwealth presented Troopers Mays and Hertzog, who testified to the facts as delineated above.

¶ 8 Appellee, who has an eighth-grade education and left school at the age of sixteen, took the stand and conceded that after Officer Mays returned his documentation, the officer informed him that he was free to leave. Appellee testified, however, that he did not believe he had any choice except to answer questions after Officer Mays re-initiated contact and that he felt similarly compelled to consent to the search of his person and his vehicle.

¶ 9 Based on these facts, the suppression court concluded that Appellee had been subjected to an investigatory detention when Officer Mays asked him if he would answer some questions after returning Appellee's paperwork. The court credited Appellee's testimony that he did not feel free to leave despite Officer Mays's statement to the contrary. The court concluded that Appellee's beliefs were objectively reasonable given all of the circumstances surrounding the interdiction, including the late hour, the isolated and dark rural road, and the bright spotlight shining on Appellee's car. The court also considered the fact that Appellee had been ordered to exit his car, two armed police officers were outside of their cruiser to speak with Appellee, and Appellee was subjected to questioning before re-entering his car and immediately after being informed that he was free to leave. Appellee was never told that he was not required to answer the questions, nor was he informed that he did not have to consent to the search. Since the detention was not supported by reasonable suspicion, the trial court suppressed the two crack pipes found as a result of the search of Appellee's vehicle and person as well as Appellee's confession to the use of crack cocaine and the results of his blood test. This appeal by the Commonwealth ensued.

¶ 10 A panel of this Court affirmed the suppression order, with Judge, now Justice, McCaffery dissenting. We then granted en banc review, and the matter is now ready for disposition. Initially, we note:

When reviewing the propriety of a suppression order, an appellate court is required to determine whether the record supports the suppression court's factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). [Where the defendant] prevailed in the suppression court, we may consider only the evidence of the defense and so much of the evidence for the Commonwealth as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003) (citations omitted). However, where the appeal of the determination of the suppression court turns on allegations of legal error, "the suppression court's conclusions of law are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts." Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 881 (1998).

Commonwealth v. Mistler, 590 Pa. 390, 396-97, 912 A.2d 1265, 1269-70 (2006). The Commonwealth argues that after police returned Appellee's documents and told him that he was free to leave, the traffic stop was concluded. It maintains that when Officer Mays re-initiated contact with Appellee, Officer Mays engaged Appellee in a mere encounter that did not need to be supported by reasonable suspicion.

This Court has noted that there are three basic categories of interactions between citizens and the police. The first category, a mere encounter or request for information, does not need to be supported by any level of suspicion, and does not carry any official compulsion to stop or respond. The second category, an investigative detention, derives from Terry v. Ohio[, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] and its progeny: such a detention is lawful if supported by reasonable suspicion because, although it subjects a suspect to a stop and a period of detention, it does not involve such coercive conditions as to constitute the functional equivalent of an arrest. The final category, the arrest or custodial detention, must be supported by probable cause.

Commonwealth v. Smith, 575 Pa. 203, 212-13, 836 A.2d 5, 10 (2003); see also Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citation omitted) ("Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to disregard the police and go about his business, ... the encounter is consensual and no reasonable suspicion is required."); accord Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005).

¶ 11 In the present case, there is no question that Appellee was subjected to a constitutional seizure when police stopped his vehicle for a taillight infraction. We must therefore decide whether, when Officer Mays reintroduced questioning after returning Appellee's documents and...