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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRELL DARNELL SMITH
Appellant No. 1207 MDA 2014
Appeal from the Judgment of Sentence June 17, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005207-2013
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 14, 2015
Appellant Terrell Darnell Smith appeals from the judgment of sentence
entered in the York County Court of Common Pleas following his jury trial
convictions for driving under the influence (“DUI”) of a controlled substance,
Schedule I, and DUI of a controlled substance, Schedule I or II metabolite.1
We affirm.
The relevant facts and procedural history of this appeal are as follows.
On June 26, 2013, at approximately 2:19 a.m., Trooper Jonathan Confer
activated the lights in his police car to pull over a vehicle driving on
Interstate 83. N.T., 11/8/13, at 4-6. Appellant, who was driving a blue
Mazda Protege on Interstate 83 in front of the targeted vehicle, believed the
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1
75 Pa.C.S. § 3802(d)(1)(i) and (iii), respectively.
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trooper had activated his lights to initiate a stop of his vehicle. N.T.,
5/15/14, at 137-38. Both vehicles pulled over to the side of the road. N.T.,
11/8/13, at 6. The targeted vehicle parked directly in front of the police
vehicle, and Appellant’s vehicle parked about nine or ten car lengths in front
of the targeted vehicle. Id. at 14. After Trooper Confer and his partner
approached the targeted vehicle, Trooper Confer left his partner with the
targeted vehicle and approached Appellant’s vehicle to determine why
Appellant pulled his vehicle to the side of the road. Id. at 6. Trooper Confer
observed Appellant’s bloodshot and glassy eyes and noticed a strong odor of
alcohol emanating from Appellant. Id. at 7. Appellant admitted to drinking
alcohol and smoking marijuana earlier that evening, and Trooper Confer
conducted field sobriety tests. Id. at 8. Trooper Confer then arrested
Appellant for DUI. Id. at 13. A subsequent blood test revealed the
presence of marijuana and a small amount of alcohol in Appellant’s blood. 2
N.T., 5/15/14, at 122, 125.
On November 4, 2013, Appellant filed a pre-trial motion to suppress
evidence. The court conducted a suppression hearing on November 8, 2013
and denied Appellant’s suppression motion.
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2
Specifically, Appellant’s blood alcohol level was .024, and there were Delta-
9 THC of 3.9 nanograms per milliliter and Delta-9 Carboxy THC of 85
nanograms per milliliter in his blood, which indicated the presence of
marijuana. N.T., 5/15/14, at 122, 125.
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On May 16, 2014, a jury found Appellant guilty of DUI controlled
substance, Schedule I (Count 3), and DUI controlled substance, Schedule I
or II metabolite (Count 4).3 On June 17, 2014, the court sentenced
Appellant to 90 days to 5 years’ incarceration and a fine of $1,500.00 on
Count 3. The court imposed no further sentence on Count 4. On July 18,
2014, Appellant filed a notice of appeal.4
On July 28, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Appellant timely complied on August 15, 2014.
Appellant raises the following issues for our review:
WHETHER THE TROOPER SUBJECTED APPELLANT TO AN
UNLAWFUL INVESTIGATORY DETENTION UNDER THE 4TH
AMENDMENT AND ARTICLE I, SECTION 8 BECAUSE THE
TROOPER LACKED REASONABLE SUSPICION OR PROBABLE
CAUSE TO CONDUCT A TRAFFIC STOP ON APPELLANT’S
VEHICLE?
WHETHER THE SUPPRESSION COURT ERRED IN FINDING
THAT APPELLANT WAS NOT REQUIRED TO PULL OVER
AFTER THE TROOPER ACTIVATED HIS EMERGENCY LIGHTS
BECAUSE APPELLANT’S BELIEF THAT THE TROOPER
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3
The jury acquitted Appellant of Counts 1 (DUI: general impairment/
incapable of safe driving, 75 Pa.C.S. § 3802(a)(1)), 2 (careless driving, 75
Pa.C.S. § 3714(a)) and 5 (DUI: controlled substance – combination, 75
Pa.C.S. § 3802(d)(3)).
4
Along with his notice of appeal, Appellant filed a petition to file a notice of
appeal nunc pro tunc because he failed to file his appeal within 30 days of
sentence. The court granted Appellant’s petition. Thus, we have jurisdiction
to decide this appeal.
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SUBJECTED HIM TO A SEIZURE WAS REASONABLE UNDER
THE 4TH AMENDMENT AND ARTICLE I, SECTION 8?
Appellant’s Brief at 4.
For ease of disposition, we will address Appellant’s claims together.
Appellant argues that the police officers did not have probable cause or
reasonable suspicion to stop Appellant. Appellant claims that when he saw
the flashing lights, he thought he was subject to a traffic stop, and that this
belief was reasonable. He claims that the stop was an illegal investigatory
detention that entitles him to suppression of evidence. We disagree.
We review the denial of a suppression motion as follows:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.
We may consider only the evidence of the prosecution and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Commonwealth v. Gillespie, 103 A.3d 115, 118 (Pa.Super.2014) (quoting
Commonwealth v. Williams, 941 A.2d 14, 26–27 (Pa.Super.2008) (en
banc )).
Where…the appeal of the determination of the suppression
court turns on allegations of legal error, the suppression
court’s legal conclusions are not binding on an appellate
court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the
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conclusions of law of the courts below are subject to
plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010), cert. denied, 131
S.Ct. 110, 178 L.Ed.2d 32 (2010) (internal citations and quotation marks
omitted).
There are three types of interactions between police officers and
citizens. Commonwealth v. Stevenson, 832 A.2d 1123, 1126-27,
(Pa.Super.2003). “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.” Id.
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.
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. 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.
“The protection against unreasonable searches and
seizures afforded by the Pennsylvania Constitution is
broader than that under the Federal Constitution.”
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Commonwealth v. Jackson, 698 A.2d 571, 573
(Pa.1997). However, “[i]n determining whether
reasonable suspicion exists for a Terry[5] stop, the inquiry
is the same under either Article 1, Section 8 of the
Pennsylvania Constitution or the Fourth Amendment of the
United States Constitution.” Commonwealth v.
McClease, 750 A.2d 320, 324 (Pa.Super.2000).
To determine if an interaction rises to the level of an
investigative detention, i.e., a Terry stop, the court must
examine all the circumstances and determine whether
police action would have made a reasonable person believe
he was not free to go and was subject to the officer’s
orders. Commonwealth v. Sierra, 723 A.2d 644, 646
([Pa.]1999). An investigative detention, unlike a mere
encounter, constitutes a seizure of a person and thus
activates the protections of Article 1, Section 8 of the
Pennsylvania Constitution. Commonwealth v.
Melendez, 676 A.2d 226, 229 ([Pa.]1996). To institute
an investigative detention, an officer must have at least a
reasonable suspicion that criminal activity is afoot. Sierra,
supra at 176, 723 A.2d at 647. Reasonable suspicion
requires a finding that based on the available facts, a
person of reasonable caution would believe the intrusion
was appropriate. See Commonwealth v. Zhahir, 751
A.2d 1153 (Pa.2000).
Commonwealth v. Stevenson, 832 A.2d 1123, 1127-29 (Pa.Super.2003).
The remedy for illegal seizures and searches “is exclusion of the fruits
of the illegal police conduct—under both the Fourth Amendment and under
Article I Section 8. That general rule of exclusion, of course, is subject to
numerous exceptions.” Commonwealth v. Johnson, 86 A.3d 182, 187
(Pa.2014). The exclusionary rule was created to “deter deliberate, reckless,
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5
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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or grossly negligent conduct, or in some circumstances recurring or systemic
negligence.” Id. at 193 (internal citations omitted).
The suppression hearing testimony revealed that Trooper Confer
engaged his emergency lights to pull over the vehicle driving directly behind
Appellant, and that the Trooper did not intend to stop Appellant. However,
Appellant also pulled over his vehicle, mistakenly believing that Trooper
Confer intended to stop him. When Trooper Confer approached Appellant’s
vehicle to ascertain why Appellant stopped, Appellant’s bloodshot eyes and
odor of alcohol made his intoxication immediately apparent. Appellant then
admitted to drinking alcohol and smoking marijuana earlier that evening.
Based on this evidence, the trial court correctly determined that the
incident began as a mere encounter which transformed into a custodial
detention after the Trooper observed Appellant’s intoxication:
We note that, if anything, we’d call this an inadvertent
stop. The police didn’t actually stop [Appellant].
[Appellant] stopped voluntarily. So there’s nothing wrong
with the stop.
I guess it’s defense counsel’s argument that the troopers
didn’t have the right to even approach the vehicle, which
we don’t believe is correct, and we don’t believe it was an
investigative detention.
Accordingly, we don’t believe the troopers did anything but
have a mere encounter with [Appellant] which then gave
them probable cause to believe that [Appellant] was under
the influence.
And based on the trooper’s testimony surrounding the field
sobriety tests, we believe that the arrest was proper. So
we’ll deny the motion to suppress.
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N.T., 11/8/13, at 28-29.
The trial court’s factual findings are supported by the record, and its
legal conclusions are correct. See Gillespie, supra. We see no error in the
trial court’s decision to deny Appellant’s suppression motion. Accordingly,
we affirm.
Judgment of sentence affirmed.
Judge Wecht joins in the memorandum.
Judge Lazarus files a concurring statement in which Judge
Wecht and Judge Jenkins join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
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Com. v. Smith, T.
Combined Opinion