Commonwealth v. Cost

• Citation: 224 A.3d 641
• Decision Date: 22 January 2020
• Docket Number: No. 39 EAP 2018,39 EAP 2018
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Harold COST, Appellant
• Court: Pennsylvania Supreme Court

224 A.3d 641

COMMONWEALTH of Pennsylvania, Appellee

v.Harold COST, Appellant

No. 39 EAP 2018

Supreme Court of Pennsylvania.

Argued: September 11, 2019

Decided: January 22, 2020

OPINION

CHIEF JUSTICE SAYLOR

In this case arising under the Fourth Amendment to the United States Constitution, the issue accepted for review concerns the impact -- on the question whether a seizure has occurred during a police-citizen encounter -- of an officer's retention of an individual's identification card. The question distills to whether a reasonable person would feel free to ignore the police presence and proceed about his business while, amongst the other circumstances presented, the person is questioned by police as an officer continues to hold his identification and conducts a warrant check.

Appellant was arrested for various firearms offenses and filed a motion to suppress. At an ensuing hearing, the lead investigating officer initially explained that he was patrolling a high crime area in Philadelphia in an unmarked vehicle at approximately 9 p.m., when his partner observed Appellant and three other individuals in an alley.¹ The officer suspected "there might be something going on back there." N.T., April 20, 2017, at 7-8, 10 (expressing the concern that the individuals may have been "gambling, you know, maybe smoking a little weed ...."). Thus, the policemen circled the block and stopped the vehicle in front of the alleyway to conduct an investigation. See id. at 11. According to the officer, he did not activate the vehicle's emergency sirens or lights. See id. at 13.

The officer further explained that, when he and his partner alighted from their vehicle, he announced "police," in particular, because the officers were in plain clothes. Id. at 11, 26, 30, 53. He then asked the subjects if any of them "live back there," to which they replied in the negative. Id. at 10. Proceeding to ask if the individuals "had ID," the officer testified that all of them handed him identification cards of some sort. Id. The officer then asked "was there anything -- you guys have anything on you I need to know about," to which they also said no. Id.

The officer testified that Appellant was removing a backpack, which prompted the officer to ask, "you have anything in that backpack I need to know about?" Id. At that point, Appellant admitted that he had a gun in the bag. See id. Subsequently, the partner recovered a handgun.

Additionally, the officer related that he and his partner were in plain clothes, but that an "outer carrier" displayed a badge number; they had law-enforcement necklace medallion badges hanging from their necks; and they wore vests displaying a police insignia on the backs. See id. at 12, 26. According to the officer, Appellant didn't have to answer questions or produce identification; rather, his path was unrestricted, and he could have "walked off at any time." Id. at 35, 50-51. The officer also affirmed that he did not remove his service weapon from his holster or put his hand on the holster. See id. at 11, 13. It was the officer's testimony that the entire encounter, through the question about the backpack, lasted less than a minute. See id. at 47.

On cross-examination, the officer related that he had not witnessed any criminal activity. See id. at 20. Further, he engaged in the following discussion with defense counsel concerning his posture:

Q. When you and your partner stopped this group of males, one of you stands on the one side and one of you stand[s] on the other in your field interview stance or some other stance?

You know what I'm talking about, right?

A. Yes.

Q. Let me qualify that.

Officer, we can agree that a field interview stance, you're taught at the academy, blade your body, gun away from the person that you receive as your threat when you interview them to talk to them; is that fair?

A. Yes.

Id. at 31. Additionally, the officer confirmed that he did not specifically tell the four subjects of the inquiries that they were free to leave. See id. at 31, 36.

The officer also clarified that he "ran [the] names" of the individuals through a police dispatcher, and that "nothing came back bad." Id. at 32. In this respect, he elaborated:

I didn't run their names until after we had -- we were doing all of this simultaneously. I hadn't asked them if they had anything on them I need to know about first.

* * *

We have to run them over the air. We have to wait for the dispatcher to respond. In the midst of all that, I still don't have clarification so, yes, I did ask them if they had anything else on them.

32-33; see also id. at 47 ("[I]t's all, like, a simultaneous thing.").²

In a later interchange, the officer indicated that he had written down the information from the identifications, but he did not specifically clarify when this had occurred:

Q. ... So when you say everything was written down, either you or your partner were writing in your patrol car the ID information they gave you; isn't that right?

A. On a notepad or something, we jotted down everybody's name and date of birth that they gave, and their addresses.

Id. at 42.³

The suppression court awarded the exclusionary remedy at the conclusion of the hearing, initially explaining as follows:

Here's where I am: I think the officer's okay up to the point that I hear this one question: Anything in there that would hurt me. That's what you ask when the guy is under arrest. You are going to go in there and now I'm going to do my usual patdown for weapons. I don't want to get stuck with a needle. So when we get to that point, we're way past everything else.

We can ask for ID.... [T]he asking for ID is okay as long as there's nothing too authoritative which would cause coercion, nothing the officer does to escalate the incident, there's no show of force, no weapons shown by the police or blocking of exits, no induce[ment] of cooperation by way of coercive means, and no curtailment of liberty.

You know, the cases we see is where he asked for IDs, the guy puts -- goes in his pocket, does threatening gestures, or some kind of [non]cooperation. I didn't see any of that in this case. Based upon that, I'll grant the motion to suppress.

N.T., April 20, 2017, at 71-72.

The Commonwealth lodged an interlocutory appeal, and the suppression court issued an opinion under Rule of Appellate Procedure 1925(a). Initially, the court explained that warrantless searches are not permitted under the Fourth Amendment to the United States Constitution unless conducted pursuant to a recognized exception to the warrant requirement. See Cost , CP-51-CR-0009310-2015, slip op. at 2 (citing Commonwealth v. Key , 789 A.2d 282, 287 (Pa. Super. 2001) ).⁴ Further, the court observed that such exceptions include scenarios in which an individual consents to a search during a mere encounter. See id. (citing Commonwealth v. Dunnavant , 63 A.3d 1252, 1257 n.3 (Pa. Super. 2013) ). See generally Commonwealth v. Hicks , ––– Pa. ––––, ––––, 208 A.3d 916, 927 (2019) (distinguishing between a mere encounter and an investigative detention). But, during any investigative detention, the court related, a warrantless search must be supported by "a reasonable and articulable suspicion that the person seized is engaged in criminal activity[.]" Cost , CP-51-CR-0009310-2015, slip op. at 2 (quoting Commonwealth v. Strickler , 563 Pa. 47, 57, 757 A.2d 884, 889 (2000) ); accord Hicks , ––– Pa. at ––––, 208 A.3d at 932-33.

At the outset, the suppression court found that reasonable suspicion of criminal behavior simply was not present and reiterated that Appellant and his companions had fully cooperated with the officers. See Cost , CP-51-CR-0009310-2015, slip op. at 2. Thus, the court then proceeded to analyze whether the interaction should be characterized as a mere encounter or an investigative detention.

Along these lines, the suppression court explained that the threshold between the two forms of police-citizen interactions is assessed according to whether, considering all of the facts and circumstances surrounding the interaction, a reasonable person would have thought that he was restrained. See id. at 3 (citing Commonwealth v. Moyer , 954 A.2d 659, 664 (Pa. Super. 2008) ); accord Hicks , ––– Pa. at ––––, 208 A.3d at 927. Additionally, the court highlighted that a totality-of-the-circumstances framework governs, in that:

[a] court must examine "all surrounding circumstances evidencing a show of authority or exercise of force, including the demeanor of the police officer, the manner of expression used by the police officer, the manner of expression used by the police in addressing the citizen, and the content of the interrogatories or statements."

Cost , CP-51-CR-0009310-2015, slip op. at 3 (quoting Commonwealth v. Mendenhall , 552 Pa. 484, 488, 715 A.2d 1117, 1119 (1998) ).

Applying these standards, the court focused upon the following passage from the testimony of the lead officer:

[The partner had] seen the males first. We circled. We came back around. As we came back around to conduct our investigation, the males were exiting the alleyway. Myself and [the partner] exited the vehicle as the males were coming out. I asked the males, any of you guys live back there. They're like no. I asked the males if they had ID, which all three males handed me identifications. I then asked the males, was there anything -- you guys have anything on you I need to know about? They stated no.

The defendant was removing a backpack. I said, you have anything in that backpack I need to know about? At which point he stated he had a gun in the backpack.

Id. (quoting N.T., April 20, 2017, at 11).

Based on this evidence, the suppression court summarily reiterated "when [the officer] asked [Appellant] about what was in the bag he was carrying, there was no doubt that the stop had escalated into an investigative detention and such a question was designed to potentially incriminate [Appellant]." Id. ; see also id. at 4 ("The interaction between [Appellant] and his companions...