Commonwealth v. Sierra

• Decision Date: 06 January 1999
• Citation: 555 Pa. 170,723 A.2d 644
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Kevin M. SIERRA, Appellee.
• Court: Pennsylvania Supreme Court

555 Pa. 170

723 A.2d 644

COMMONWEALTH of Pennsylvania, Appellant, v. Kevin M. SIERRA, Appellee.

Supreme Court of Pennsylvania.

Argued January 29, 1997.

Decided January 6, 1999.

Joseph C. Adams, H. Stanley Rebert, York, for Com.

Michael F. Fenton, Michael Baldauff, York, for Kevin M. Sierra.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

ORDER

PER CURIAM:

AND NOW, this 6th day of January, 1999, the Court being evenly divided the order of Superior Court is Affirmed.

Justice NIGRO files an Opinion in Support of Affirmance.

Justice CASTILLE files an Opinion in Support of Reversal in which Justice NEWMAN joins.

Justice CAPPY files an Opinion in Support of Reversal.

OPINION IN SUPPORT OF AFFIRMANCE

NIGRO, Justice.

This is an appeal by the Commonwealth from an order of the Superior Court reversing appellee's judgment of sentence for firearms offenses and remanding for further proceedings. At issue is whether the evidence seized from appellee during a vehicle stop should have been suppressed. For the reasons which follow, we affirm.

In reviewing a suppression court's ruling, we are bound by those factual findings of the suppression court which are supported by the record. Commonwealth v. Slaton, 530 Pa. 207, 208, 608 A.2d 5, 5 (1992); Commonwealth v. James, 506 Pa. 526, 533, 486 A.2d 376, 379 (1985); Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984).

In the instant case, the trial court made the following findings of fact, which are uncontested by the parties. Appellee was the passenger in a car which West Manchester Township Police Officer Jeffrey Oberdorff observed speeding shortly after midnight on November 21, 1993. Since Officer Oberdorff was proceeding in the opposite direction, he radioed a colleague, Officer Keith Roehm, and advised him of his observations. Officer Roehm followed the vehicle for three or four tenths of a mile and determined that it was travelling twenty to twenty-five miles per hour over the posted forty mile per hour speed limit. After stopping the vehicle, Officer Roehm noticed that it had dealer plates. Officer Roehm asked the driver for his license, vehicle registration, and insurance card. The driver complied with the request. Noticing that the license had expired, that the driver had a gang tattoo under his left eye, that the car contained a number of boxed motorcycle parts, and that the occupants of the car appeared nervous, Officer Roehm then asked whether there was anything illegal in the vehicle. After the driver responded in the negative, Officer Roehm proceeded to his police cruiser to check the license status and to write a warning for speeding.

A few moments later, as Officer Roehm returned to the vehicle, Officer Oberdorff arrived on the scene and positioned himself beside the passenger side of the car. After handing the driver his documentation and having him sign the written warning, Officer Roehm again asked if there was anything illegal in the car. The driver said, "No, would you like to look?," to which Officer Roehm responded, "Yes, if you don't mind."

Officer Roehm then asked the two men to exit the vehicle so the officers could conduct a brief pat-down search for weapons. While patting down appellee's clothing, Officer Oberdorff found a semi-automatic handgun in the waistband in the back of appellee's pants. Three months later, after it was determined that appellee had no permit for the gun, he was arrested and charged with violating the prohibition against former convicts owning firearms¹ and carrying a firearm without a license.²

Appellee filed an omnibus pretrial motion seeking suppression of the physical evidence. Following an evidentiary hearing, the motion was denied. Appellee was subsequently convicted after a bench trial and sentenced to a term of nineteen to thirty-eight months' imprisonment.

On appeal, the Superior Court reversed, reasoning that Officer Roehm lacked a reasonable suspicion of criminal activity at the time of his second inquiry regarding the presence of illegal items in the automobile and thus had no legitimate basis to continue his investigation. The court concluded that as a result, the driver's consent to search the car and the subsequent pat-down search of appellee were tainted.

The Commonwealth then filed a Petition for Allowance of Appeal. This Court granted allocatur to examine: (1) whether Officer Roehm's continued questioning of the driver regarding the contents of the car constituted an investigative detention; (2) if so, whether the detention was justified; and (3) if there was an illegal detention, whether the driver's subsequent consent to search the vehicle and the pat-down search of appellee were tainted by the illegal detention.

The first step in our analysis is to determine whether Officer Roehm's questioning of the driver after Roehm had returned the driver's license and issued a traffic warning constituted an investigative detention.³

An investigative detention occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. Commonwealth v. Lopez, 415 Pa.Super. 252, 258, 609 A.2d 177, 180,appeal denied 533 Pa. 598, 617 A.2d 1273 (1992). See also Commonwealth v. Lewis, 535 Pa. 501, 636 A.2d 619 (1994). Such a detention constitutes a seizure of a person and thus activates the protections of the Fourth Amendment and the requirements of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Lopez, 415 Pa.Super. at 258-59,609 A.2d at 180; Lewis, 535 Pa. at 507-08,636 A.2d at 622-23. In order to determine whether a particular encounter constitutes a seizure/detention, "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' request or otherwise terminate the encounter." Lewis, 535 Pa. at 509,636 A.2d at 623 (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)).

In the present case, the Commonwealth argues that the officer's questioning cannot be characterized as an investigative detention because Officer Roehm had returned the driver's license and registration and had issued a warning for speeding prior to asking any questions of the driver, because there was no show of physical force or authority over the driver, and because the question asked by Officer Roehm was not a request to search the vehicle.

Given the circumstances surrounding the encounter, we cannot agree that the occupants should have known that they could depart once the officer returned the driver's documentation and issued the warning. At the time the driver's documentation was returned, two officers continued to surround the vehicle. Additionally, Officer Oberdorff arrived on the scene after the first question had been posed by Officer Roehm, thus heightening the coercive atmosphere at the time of the second question. Further, Officer Roehm exerted continued pressure on the driver by repeating the same question despite having received a negative response to his initial inquiry. The cumulative effect of these circumstances was such that no reasonable person would have felt free to terminate the encounter. See Berkemer v. McCarty, 468 U.S. 420, 436, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)("a traffic stop significantly curtails the `freedom of action' of the driver and the passengers, if any, of the detained vehicle.... Certainly few motorists would feel free ... to leave the scene of a traffic stop without being told they might do so."); Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735 (1993) (holding that police officer's continued detention of driver stopped for traffic violation, after officer issued traffic citation, constituted seizure and was improper). Thus, we conclude that the officer's continued questioning of the driver constituted an investigative detention.⁴ Next, we must examine whether Officer Roehm had a reasonable basis to justify detaining the vehicle for investigative purposes. An investigative detention constitutes a seizure of a person and therefore must be supported by reasonable suspicion that those detained are engaged in criminal activity. Ellis, 541 Pa. at 294, 662 A.2d at 1047. See also Lopez, 415 Pa.Super. at 261,609 A.2d at 182 (holding that once matters relating to initial traffic stop had been resolved, in order to justify detaining driver for further questioning, officer must have reasonable suspicion of illegal transactions in drugs or of any other serious crime).

The Commonwealth asserts that Officer Roehm possessed the requisite reasonable suspicion based on his observations that the vehicle had dealer's tags, that there were boxes of loose motorcycle parts in the back seat, that the stop occurred at 12:22 a.m., and that both appellee and the driver appeared to be more nervous than most people would be during a routine traffic stop. We disagree.

None of the officer's observations demonstrate, or even suggest, illegal activity. We are not persuaded by the Commonwealth's assertion that Officer Roehm reasonably believed that the vehicle may have contained stolen parts, as Officer Roehm was unable to articulate any basis for such a suspicion beyond his mere observation of the parts in the rear of the vehicle⁵ and the Commonwealth has failed to identify any facts surrounding the encounter which would support such a conclusion. In fact, not only was Officer Roehm unable to offer any reasonable basis for his suspicion that the motorcycle parts were stolen, Roehm himself testified at the suppression hearing that he had no indication of any on-going crime at the time he returned the driver's documentation and questioned him about the contents of the car. N.T., July 7, 1994, at 12. Accordingly, because Officer Roehm had no legitimate basis to suspect that criminal activity was afoot, we...