[J-81-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 7 WAP 2018
:
Appellee : Appeal from the Order of the Superior
: Court entered June 5, 2017 at No.
: 1445 WDA 2016, affirming the
v. : Judgment of Sentence of the Court of
: Common Pleas of Allegheny County
: entered August 31, 2016 at No. CP-
EDWARD THOMAS ADAMS, : 02-CR-0002870-2016.
:
Appellant : ARGUED: October 24, 2018
OPINION
JUSTICE DONOHUE DECIDED: MARCH 26, 2019
This discretionary appeal requires the Court to consider once again when an
interaction between an ordinary citizen and a law enforcement official ripens from a mere
encounter, requiring no level of suspicion, to an investigative detention, which must be
supported by reasonable suspicion that criminal activity is afoot. We conclude, based on
longstanding precedent of this Court and the United States Supreme Court, that the line
is crossed when a reasonable person would not feel free to leave, and that a detention
effectuated by police in the interest of officer safety is impermissible in the absence of
reasonable suspicion of criminal activity. We therefore reverse the decision of the
Superior Court and remand the matter to the trial court for proceedings consistent with
this Opinion.
The pertinent facts are largely undisputed. At approximately 2:56 a.m. on January
10, 2016, during a routine patrol, Officer James Falconio of the Pleasant Hills Police
Department observed a white Dodge Dart enter a parking lot that served two closed
businesses – a hobby store and a pizza shop – and drive behind the buildings. Believing
that the vehicle may have made a wrong turn, Officer Falconio waited and watched for
the vehicle to exit the parking lot. When it did not, the officer drove into the parking lot
and behind the buildings to “simply check[] to see why a car drove behind two dark, closed
businesses at [three] o’clock in the morning,” as he recognized the potential for “drug
activity or an attempted burglary.” N.T., 8/25/2016, at 9.
When he arrived behind the buildings, Officer Falconio observed a white Dodge
Dart parked behind the pizza shop. The engine was not running and the vehicle’s lights
were off. Although there were no “no parking” signs,1 there were also no marked parking
spots. Officer Falconio did not believe that this was an area where the public would
generally park, but that the area might be used for deliveries and employee parking.
1 The Commonwealth states in its brief that there were posted “no parking” signs behind
the buildings. Commonwealth’s Brief at 6. The record, however, does not support this
contention. Instead, the record reflects the following exchange between defense counsel
and Officer Falconio on this point during cross-examination:
Q And there is parking available back there.
A It’s not marked parking. But you can park back there.
Q You’ve seen vehicles parked back there.
A Yes.
Q And there's no no-parking signs up there.
A No. I haven't seen cars parked there at 3 a.m. too often.
N.T., 8/25/2016, at 22 (emphasis added).
[J-81-2018] - 2
Officer Falconio pulled behind the vehicle in his marked police cruiser but did not
activate his overhead lights or siren. He radioed for backup, but prior to backup arriving,
he exited his police cruiser and walked over to the parked vehicle. It was late at night in
a poorly lit area, and Officer Falconio utilized his flashlight, shining it into the vehicle as
he approached. He reached the driver’s side door and knocked on the window, at which
time the occupant, Appellant Edward Thomas Adams (“Adams”), opened the car door.
Officer Falconio pushed the door closed and instructed Adams to roll down his window.
According to Officer Falconio, he did not feel safe allowing Adams, who was “not a short
guy,” to exit his vehicle without another officer present. Id. at 21. Adams explained to the
officer that he could not open the window because he did not have the keys to the vehicle.
Officer Falconio observed a set of keys (which he believed to be the keys to the vehicle)
on the floor of the back of the car.2 Adams remained in his vehicle until backup arrived,
which occurred approximately one minute later.
With another officer present, Officer Falconio opened Adams’ door and began to
speak with him. Adams conveyed that he was the owner of the pizza shop and stated
that he had just been inside his business. The officer knew the latter statement was not
2 The Commonwealth contends that Officer Falconio observed the keys in the backseat
of the vehicle as he approached Adams, prior to closing the car door. Commonwealth’s
Brief at 6, 33. The record does not support this assertion. Officer Falconio testified that
he shined his flashlight into the rear of the vehicle as he approached to ensure no one
was laying down in the backseat. N.T., 8/25/2016, at 24. Although he arguably could
have seen the keys at that time, counsel for Adams specifically asked the officer on cross-
examination when he observed the keys on the floor of the backseat, and he testified that
this occurred simultaneously with when he closed Adams’ vehicle door. Id. (defense
counsel asked the officer whether he observed the keys “before or after you pushed his
door closed,” and Officer Falconio responded, “As”). The trial court made a factual finding
that the officer observed the keys at the time the officer closed the door to the vehicle.
See Trial Court Opinion, 12/5/2016, at 3. As the record supports that finding of fact, we
are bound by it. Commonwealth v. Valdivia, 195 A.3d 855, 861 (Pa. 2018).
[J-81-2018] - 3
true, as he had just observed Adams drive into the parking lot. As they spoke, Officer
Falconio detected a strong odor of alcohol on Adams’ breath and observed that he had
glassy eyes and slurred speech. He requested that Adams perform several field sobriety
tests, and although “argumentative,” Adams complied and failed the tests. Id. at 9-10.
Officer Falconio then placed him under arrest for suspicion of driving under the influence
of alcohol. He transported Adams to Jefferson Regional Hospital, where Adams
consented to a blood draw. Adams declined to provide the name of a person who could
pick him up, and so he remained in jail until police believed he was sober enough to leave
on his own, which occurred around 10:00 that morning.
Adams filed an omnibus pretrial motion asserting, inter alia, that the officer
subjected him to an illegal detention in violation of the Fourth Amendment to the United
States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Of relevance
to the case at bar, he contended that his detention by Officer Falconio was not supported
by probable cause and/or reasonable suspicion of criminal activity and that all information
and evidence obtained following his detention must be suppressed as fruits of the
poisonous tree.
The trial court held a hearing on the motion on August 25, 2016, at which Officer
Falconio provided the above-recited testimony. The trial court denied suppression,
finding that the interaction between Adams and Officer Falconio was a mere encounter
that did not convert to an investigative detention until Officer Falconio detected several
indicia of intoxication, providing him with reasonable suspicion of criminal activity to
support the temporary detention. Regarding Officer Falconio’s refusal to allow Adams to
open his car door, the trial court found that it was done in the interest of officer safety and
[J-81-2018] - 4
“was not unreasonable under these specific circumstances,” as “[t]his was a dark area
behind … closed businesses” and “backup arrived one minute later.” Trial Court Opinion,
12/5/2016, at 6.
A stipulated bench trial followed immediately thereafter. The trial court convicted
Adams of driving under the influence of alcohol3 and sentenced him to six months of
probation and a $300 fine.
Adams appealed to the Superior Court, and a majority of that court affirmed based
on the trial court’s opinion, finding:
When Officer Falconio approached the vehicle, a mere
encounter ensued, not an investigatory detention. Officer
Falconio merely approached a parked vehicle in an empty
parking lot at approximately 3:00 a.m. He did not need
reasonable suspicion or probable cause to do so. Officer
Falconio’s subsequent observations, as well as [Adams’]
actions, permitted Officer Falconio to transform this mere
encounter into an investigatory detention based upon
articulable facts that suggested criminal activity might be
afoot.
Commonwealth v. Adams, 1445 WDA 2016, 2017 WL 2424726, at *2 (Pa. Super. June
5, 2017) (non-precedential decision). Senior Judge Strassburger filed a concurring
opinion, which the majority author joined. The concurrence differed from the majority,
finding instead that the original mere encounter ripened into an investigative detention
when Officer Falconio refused to allow Adams to open his car door because at this point,
“only an unreasonable person would feel free to exit the car or drive away.”4 Id. at *2
3 75 Pa.C.S. § 3802(a)(1).
4 It is difficult to reconcile the Superior Court majority author’s joinder in Judge
Strassburger’s concurrence with the majority’s conclusion that the trial court correctly
found that no investigative detention occurred until Officer Falconio detected that Adams
[J-81-2018] - 5
(Strassburger, J., concurring). Judge Strassburger further concluded that Officer
Falconio had reasonable suspicion of criminal activity to support the investigative
detention, and thus, like the majority, would have affirmed the trial court’s denial of
suppression. “Officer Falconio had reasonable suspicion that criminal activity was afoot
based upon the car’s lingering presence in a parking lot behind closed businesses around
3 a.m.,” and that reasonable suspicion of criminal activity “certainly” arose upon Adams’
assertion that “he could not open his car door [sic] because he did not have his car keys,
yet his car keys were in plain sight.” Id.
We granted allowance of appeal to determine whether the courts below erred in
concluding that the interaction between Adams and Officer Falconio did not ripen into an
investigative detention prior to the officer detecting indicia of intoxication. We review this
case mindful that the trial court’s findings of fact are binding upon us to the extent they
have record support, but we conduct a de novo review of its legal conclusions.
Commonwealth v. Valdivia, 195 A.3d 855, 861 (Pa. 2018).
The Fourth Amendment to the United States Constitution protects private citizens
from unreasonable searches and seizures by government officials.5 See Byrd v. United
States, 138 S.Ct. 1518, 1526 (2018). Not every encounter between a law enforcement
officer and a citizen constitutes a seizure warranting constitutional protections. “Only
was intoxicated. Because this dichotomy does not affect our decision in this matter, we
need not discuss it further.
5 Although Adams mentions Article 1, Section 8 of the Pennsylvania Constitution, he
makes no argument specific to the Pennsylvania Constitution. Adams relies almost
exclusively on case law decided under the Fourth Amendment. We therefore review this
case solely under the Fourth Amendment. See Commonwealth v. Strader, 931 A.2d 630,
633 (Pa. 2007).
[J-81-2018] - 6
when the officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Florida
v. Bostick, 501 U.S. 429, 434 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968));
see also Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (recognizing that the
central focus of the determination of whether a seizure occurred is whether an individual
is somehow “restrained by physical force or show of authority”).
We have long recognized three types of interactions that occur between law
enforcement and private citizens. The first is a mere encounter, sometimes referred to
as a consensual encounter, which does not require the officer to have any suspicion that
the citizen is or has been engaged in criminal activity. This interaction also does not
compel the citizen to stop or respond to the officer. Commonwealth v. Strickler, 757 A.2d
884, 889 (Pa. 2000). A mere encounter does not constitute a seizure, as the citizen is
free to choose whether to engage with the officer and comply with any requests made or,
conversely, to ignore the officer and continue on his or her way. See id. The second type
of interaction, an investigative detention, is a temporary detention of a citizen. I.N.S. v.
Delgado, 466 U.S. 201, 215 (1984); In the Interest of A.A., 195 A.3d 896, 904 (Pa. 2018).
This interaction constitutes a seizure of a person, and to be constitutionally valid police
must have a reasonable suspicion that criminal activity is afoot. Brown v. Texas, 443
U.S. 47, 51 (1979); Strickler, 757 A.2d at 889. The third, a custodial detention, is the
functional equivalent of an arrest and must be supported by probable cause. A.A., 195
A.3d at 904. A custodial detention also constitutes a seizure. Strickler, 757 A.2d at 889.
No bright lines separate these types of encounters, Commonwealth v. Mendenhall,
715 A.2d 1117, 1120 (Pa. 1998), but the United States Supreme Court has established
[J-81-2018] - 7
an objective test by which courts may ascertain whether a seizure has occurred to elevate
the interaction beyond a mere encounter. Lyles, 97 A.3d at 302-03. The test, often
referred to as the “free to leave test,” requires the court to determine “whether, taking into
account all of the circumstances surrounding the encounter, the police conduct would
‘have communicated to a reasonable person that he was not at liberty to ignore the police
presence and go about his business.’” Bostick, 501 U.S. at 437 (quoting Michigan v.
Chesternut, 486 U.S. 567, 569 (1988)). “[W]henever a police officer accosts an individual
and restrains his freedom to walk away, he has ‘seized’ that person.” Terry, 392 U.S. at
16.
Adams argues that the interaction with Officer Falconio was an investigative
detention from the moment the officer exited the police vehicle and approached his car.
Adams’ Brief at 11. Alternatively, he asserts that it unquestionably ripened into an
investigative detention when the officer “closed the door of [Adams’] vehicle, signaling to
him and anyone in his position[] that they were not free to leave.” Id. at 11.
In its responsive brief, the Commonwealth asserts that the interaction between
Adams and Officer Falconio was a mere encounter and did not become an investigative
detention until Officer Falconio opened the door to the vehicle and had reasonable
suspicion to believe that Adams was driving under the influence of alcohol.
Commonwealth’s Brief at 13, 27. The Commonwealth argues that the officer’s approach
was permissible and that his act of closing Adams’ door did not escalate the interaction
to an investigative detention. Id. at 15-17, 23. Without supporting authority, the
Commonwealth states that closing Adams’ door did not constitute a show of force or
intimidation, but instead was for the officer’s protection until backup arrived (which
[J-81-2018] - 8
occurred shortly thereafter), rendering it permissible. Id. at 23-24. Likening the officer’s
actions here to an officer requesting that a person remove his hands from his pockets or
requiring the occupants of a vehicle to exit the car during a lawful traffic stop, the
Commonwealth asserts, “Shutting the vehicle door for approximately one minute until
backup officers arrived was within the ambit of acceptable, non-escalatory factors.” Id. at
26 (citing, inter alia, Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per curiam)
(vehicle stop); Lyles, 97 A.3d at 306 (hands in pockets)).
We agree with Adams that he was “seized” for Fourth Amendment purposes when
Officer Falconio would not allow Adams to exit his vehicle, closing the door as Adams
opened it.6 This action, constituting both an act of physical force and a show of authority,
is precisely the type of escalatory factor that compels a finding that a seizure occurred.
Officer Falconio confined Adams to his vehicle, and no reasonable person in Adams’
shoes would have felt free to leave. In fact, under these circumstances, not only would a
reasonable person not feel free to leave, Adams actually could not leave his vehicle and
“go about his business.” See Bostick, 501 U.S. at 437. Moreover, Officer Falconio did
not simply request that Adams stay in the car. His action of physically closing the door
as Adams was opening it communicated what any reasonable person would understand
to be a demand that he remain in the vehicle at that location. See, cf., Commonwealth v.
Au, 42 A.3d 1002, 1007 n.3 (Pa. 2012) (recognizing that in evaluating whether a person
has been seized for Fourth Amendment purposes, “a request obviously differs from a
demand”). At that moment, Officer Falconio restrained Adams’ freedom to walk away,
6 In light of this conclusion, we need not address Adams’ contention that the encounter
between Adams and Officer Falconio was an investigative detention from its inception.
[J-81-2018] - 9
and thus Adams was “seized” for Fourth Amendment purposes. See Terry, 392 U.S. at
16.
The Commonwealth and the courts below improperly focus, in part, on the duration
of the detention that occurred. That the detention was only temporary is irrelevant to our
analysis of whether a seizure occurred. An investigative detention, by definition,
encompasses only a “brief detention.” See United States v. Sokolow, 490 U.S. 1, 7 (1989)
(“In Terry[], we held that the police can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by articulable facts that
criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”); Strickler, 757
A.2d at 888 (“The Fourth Amendment protects against unreasonable searches and
seizures, including those entailing only a brief detention.”). The Fourth Amendment does
not have a time limit; it protects individuals from unreasonable seizures, no matter how
brief. See, e.g., United States v. Brigoni-Ponce, 422 U.S. 873, 880-82 (1975) (finding an
interaction between border patrol officers and individuals in their vehicles during roving-
patrol stops and lasting “no more than a minute” to be an investigative detention requiring
reasonable suspicion of criminal activity).
The analogies presented for our consideration by the Commonwealth are inapt.
An officer’s act of closing the door of a person’s vehicle as the person begins to open it
is not similar to a request that a person remove his hands from his pockets, as the latter
request in no way constrains a person’s ability to leave the area.7 Further, although the
7 We further note that in Lyles, the case relied upon by the Commonwealth for this
proposition, the appellant did not contend on appeal that the officer’s request for him to
remove his hands from his pockets turned the mere encounter into an investigative
detention. Instead, the question before the Court was whether “an officer’s request for
[J-81-2018] - 10
Commonwealth is correct that the Fourth Amendment allows an officer to order the
occupants of a vehicle to exit during a lawful traffic stop, it ignores that a traffic stop is an
investigative detention that itself requires reasonable suspicion or probable cause. See
Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008). In Mimms, police initiated a vehicle
stop after observing the defendant driving with an expired license plate. The high Court
explained that where police have already lawfully and permissibly intruded upon the
personal liberty of the vehicle’s occupants by conducting the stop of the vehicle and the
driver is lawfully detained, the “additional intrusion” of having the individuals exit the
vehicle at the officer’s direction does not constitute a separate seizure and “can only be
described as de minimis.” Mimms, 434 U.S. at 111.
The key differentiation of the circumstances in the case at bar is that there was no
preexisting permissible intrusion or restraint on Adams’ liberty. The Commonwealth does
not contend, and the record does not support a finding, that Adams was already subjected
to a lawful investigative detention at the time Officer Falconio closed the vehicle’s door.
See Commonwealth’s Brief at 17-21 (asserting that the interaction began as a mere
encounter). Thus, unlike in Mimms, Officer Falconio’s action was not an additional de
minimus intrusion upon a person who police had already lawfully seized.
The Commonwealth further points to this Court’s recent decision in
Commonwealth v. Mathis, 173 A.3d 699 (Pa. 2017), as compelling a finding that Officer
Falconio’s action did not escalate the interaction to an investigative detention.
Commonwealth’s Brief at 26-27. In Mathis, a majority of this Court concluded that a
identification elevated an encounter to an investigative detention unsupported by
reasonable suspicion.” Lyles, 97 A.3d at 300. Thus, for this reason as well, Lyles does
not provide support for the Commonwealth’s contention.
[J-81-2018] - 11
parole agent’s statement to a visitor in a parolee’s home that he would get the visitor
(Mathis) out of the house “as soon as I possibly can,” and his request that Mathis move
into the front room of the house did not elevate the interaction to an investigative
detention. Mathis, 173 A.3d at 712-13. At the time of the request, a different parole agent
was conversing in another room with the parolee, as there was a smell of burnt marijuana
in the house and the agents observed marijuana roaches in an ashtray. The Mathis
majority found the “relaxed and conversational” tone of the interaction between the parole
agent and Mathis to that point, which the Majority deemed “non-confrontational,” did not
warrant a finding that Mathis had been seized, particularly in light of Mathis’ recollection
that he believed the parole agent communicated to him an urgency for Mathis to leave
the house. Id. at 702-03, 713.
In contrast, in the pending matter, there was no interaction, let alone conversation,
between Officer Falconio and Adams before the officer prohibited Adams from exiting his
vehicle. As stated above, prior thereto, Officer Falconio parked behind Adams’ vehicle
and approached it, shining a flashlight inside of the vehicle. He then tapped on the
window, following which Adam attempted to open the door to engage with the officer, but
Officer Falconio closed the door on him so that he could not exit the vehicle. There was
no “request” made, and we cannot classify the officer’s action here as non-
confrontational. While we accept that Officer Falconio may have been concerned for his
safety, given Adams’ apparent stature and that the officer was alone, a police officer’s
action of closing the car door on someone as he attempts to exit his vehicle can only be
viewed as a show of force and authority. Thus, based on the factual differences between
[J-81-2018] - 12
Mathis and the matter at hand, we reject the Commonwealth’s claim that Mathis is
controlling.
There is no question that a reasonable person in Adams’ position would not have
felt free to leave once Officer Falconio closed his vehicle door on him, and he was thus
seized. The courts below erred when they concluded that the interaction was a mere
encounter despite this action by the officer. The basis for the courts’ conclusion that this
did not escalate the interaction to an investigative detention was that they viewed the
closing of Adams’ vehicle door to be in the interest of officer safety – he was the only
officer at the scene and it was dark outside. Trial Court Opinion, 12/5/2016, at 6; see also
Adams, 2017 WL 2424726, at *2 (affirming based on the trial court’s opinion). This is
contrary to the law. Pursuant to Terry and its progeny, a detention effectuated by police
in the name of “officer safety” is not sufficient to permit the detention, as “officer safety”
does not overcome or replace the requirement of reasonable suspicion that criminal
activity is afoot to support the seizure.
Terry marked the first case in which the United States Supreme Court determined
that law enforcement officials may briefly detain an individual for questioning and pat
down or “frisk” the person based on facts that amount to less than probable cause to
arrest. In Terry, a police officer observed three men engaging in behavior that caused
him to suspect, based on his training and experience, that they were casing a store in
preparation to commit a robbery. The officer approached the men and began asking them
questions. He then grabbed Terry, one of the three men, and patted down the outer layer
of his clothing, which revealed a gun in Terry’s coat pocket.
[J-81-2018] - 13
Terry challenged the constitutionality of the interaction under the Fourth
Amendment. The high Court recognized the competing interests at play. On the one
side, the Fourth Amendment requires a “specific justification for any intrusion upon
protected personal security.” Terry, 392 U.S. at 10-11. On the other, there is a need for
flexibility for police to investigate criminal activity and, while in the process of doing so,
protect themselves from harm. Id. To give proper effect to both of these interests, the
Court established a two-part test. First, a brief investigatory detention is permissible only
if the police officer “observes unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot.” Id. at 30. In such
circumstances, he or she may briefly stop the suspicious person and make “reasonable
inquiries” aimed at confirming or dispelling his suspicions. Id. at 30. Second, during this
brief detention, “[w]hen an officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed and presently dangerous
to the officer or to others,” the officer may conduct a pat down search “to determine
whether the person is in fact carrying a weapon.” Id. at 24.
In applying this two-part test, the constitutionality of the seizure requires a
determination of whether “specific and articulable facts” and the “rational inferences from
those facts, reasonably warrant that intrusion.” Id. at 21.
The scheme of the Fourth Amendment becomes meaningful
only when it is assured that at some point the conduct of those
charged with enforcing the laws can be subjected to the more
detached, neutral scrutiny of a judge who must evaluate the
reasonableness of a particular search or seizure in light of the
particular circumstances. And in making that assessment it is
imperative that the facts be judged against an objective
standard: would the facts available to the officer at the
moment of the seizure or the search ‘warrant a man of
[J-81-2018] - 14
reasonable caution in the belief’ that the action taken was
appropriate?
Id. at 21-22.
In the cases that have followed Terry over the last fifty years, the high Court has
emphasized that considerations of officer safety must be preceded by a finding that the
individual was lawfully subjected to an investigative detention, i.e., that the officer had
reasonable suspicion that criminal activity was afoot. In Arizona v. Johnson, 555 U.S.
323 (2009), for example, the Court reaffirmed its decision in Terry as follows:
Th[is] Court upheld “stop and frisk” as constitutionally
permissible if two conditions are met. First, the investigatory
stop must be lawful. That requirement is met in an on-the-
street encounter, Terry determined, when the police officer
reasonably suspects that the person apprehended is
committing or has committed a criminal offense. Second, to
proceed from a stop to a frisk, the police officer must
reasonably suspect that the person stopped is armed and
dangerous.
Id. at 326-27 (emphasis added). See also Minnesota v. Dickerson, 508 U.S. 366, 373
(1993) (prior to pat down search, the officer must have reasonable suspicion of criminal
activity); Michigan v. Long, 463 U.S. 1032, 1051-52 (1983) (Terry search for weapons of
area of vehicle in reach of the individual permissible during lawful vehicle stop where the
officer has reasonable suspicion to believe that the individual may be armed and
dangerous).
Accordingly, during an investigative detention, police officers may take action,
when appropriate, for their own safety or that of the public. Both this Court and the high
Court have repeatedly stated that officer safety is a legitimate governmental interest that
is worthy of protection. See, e.g., Terry, 392 U.S. at 24; Mimms, 434 U.S. at 110; Long,
463 U.S. at 1052; Commonwealth v. Zhahir, 751 A.2d 1153, 1158 (Pa. 2000).
[J-81-2018] - 15
Importantly, however, an investigatory detention may not be premised on officer safety.
Instead, safety considerations are relevant only within the confines of a lawful
investigative detention based upon the police officer’s reasonable suspicion that the
person being stopped is committing or has committed a criminal offense. In the absence
of such reasonable suspicion (or probable cause), police may not initiate an investigatory
detention.
The courts below ignored the first step of the Terry test as they never assessed
whether Officer Falconio had reasonable suspicion of criminal activity to justify the seizure
of Adams. Instead, the courts substituted a finding that the action was permissible in the
interest of officer safety in lieu of considering whether the officer had reasonable suspicion
of criminal activity. Although an officer’s subjective concern for his safety is, of course, a
legitimate interest, it does not enter into a Fourth Amendment analysis unless the
investigative detention was initially supported by reasonable suspicion of criminal activity.
A contrary conclusion would eviscerate the Fourth Amendment since a concern for officer
safety is present in nearly all interactions police have with members of the public. See
Roberts v. Louisiana, 431 U.S. 633, 636 & n.3 (1977) (per curiam) (stating that police
“regularly must risk their lives in order to guard the safety of other persons and property,”
and that police work is inherently dangerous); Mimms, 434 U.S. at 110 (recognizing the
risk to police that is present when they approach a person seated in a car). Simply put,
in the absence of reasonable suspicion of criminal activity justifying an investigative
[J-81-2018] - 16
detention, officer safety is not a permissible basis for police to seize an individual during
a mere encounter.8
The interaction between Adams and Officer Falconio was an investigative
detention when Officer Falconio physically closed Adams’ vehicle door as Adams began
to open it. Whatever Officer Falconio’s reason for not allowing Adams to open his car
door, the resulting message was clear – Adams was not free to leave.
Having determined that a seizure occurred, we now consider whether Officer
Falconio had reasonable suspicion of criminal activity to support the investigative
detention. As stated hereinabove, an investigative detention is constitutionally
permissible if an officer identifies “specific and articulable facts” that led the officer to
believe that criminal activity was afoot, considered in light of the officer’s training and
experience. United States v. Arvizu, 534 U.S. 266, 273 (2002); Commonwealth v. Cook,
735 A.2d 673, 676 (Pa. 1999)). “[I]n determining whether the officer acted reasonably …,
due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’
but to the specific reasonable inferences which he is entitled to draw from the facts in light
of his experience.” Terry, 392 U.S. at 27.
8 Moreover, as it relates to the case at bar, the record does not reflect any immediacy or
urgency for Officer Falconio to approach Adams’ vehicle and question him. The officer
testified that he was concerned for his safety because he was the only officer present at
that time, but that he had called for backup, which he knew to be en route to his location
when he approached Adams’ vehicle. See N.T., 8/25/2016, at 21 (Officer Falconio
testifying that backup had called to let him know “they were on their way,” but had not yet
arrived when Adams opened his car door). In the absence of reasonable suspicion that
criminal activity was afoot, there was no need for Officer Falconio to approach Adams’
vehicle prior to backup arriving.
[J-81-2018] - 17
The Commonwealth contends that if an investigative detention occurred, Officer
Falconio had the requisite reasonable suspicion of criminal activity to allow for the seizure,
and that the facts of record support this conclusion. In particular, the Commonwealth
points out that the officer knew from his patrolling experience that cars were not usually
parked behind the rear of the businesses, particularly at 3:00 a.m.9 Commonwealth’s
Brief at 33-34. Adams, on the other hand, argues that Officer Falconio did not have the
requisite reasonable suspicion of criminal activity to seize him, as the officer had nothing
more than an “unparticularized hunch[]” about the possibility of criminal activity based on
the time and the location. Adams’ Brief at 23. He cites to various cases from this Court
and the Superior Court to support his position, but relies primarily on Commonwealth v.
DeWitt, 608 A.2d 1030, 1032, 1033-34 (Pa. 1992), as controlling. Adams’ Brief at 18-19.
In DeWitt, Pennsylvania State Troopers on a routine patrol observed a vehicle with
its interior lights illuminated and exterior lights extinguished parked partially on the berm
of the road and partially in a church parking lot just before midnight. Concerned that the
car could be disabled, and further based on a request from the church to look for
suspicious vehicles on its property, the troopers pulled alongside the vehicle to
investigate. At the approach of the police vehicle, the interior lights of the vehicle
extinguished, the persons inside made “furtive … and suspicious movements” and the
vehicle began to pull away from the scene. DeWitt, 608 A.2d at 1032. The troopers
became suspicious of criminal activity at that point and stopped the vehicle, then seeing
9 In its reasonable suspicion analysis, the Commonwealth further contends that Officer
Falconio observed keys laying on the rear passenger’s side floor behind the seat as he
walked up to the vehicle. As stated above, however, this contention is not supported by
the record, as the trial court made a factual finding that the officer observed the keys at
the time that he closed the door. See supra, note 2.
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in plain view what they believed to be illegal drugs. After having the occupants exit the
vehicle, the troopers searched the car and found drugs and drug paraphernalia.
The Commonwealth charged DeWitt with several violations of the Controlled
Substance, Drug, Device and Cosmetic Act.10 The trial court granted DeWitt’s pretrial
motion to suppress the evidence obtained during the search of the vehicle, finding that
the police lacked reasonable suspicion of criminal activity to conduct the stop. The trial
court found “that the only information available to the troopers was their observation of a
vehicle parked in a church parking lot with its dome illuminated and its outside lights
extinguished, and as the troopers approached, the vehicle attempted to leave the parking
lot.” Id.
The Superior Court reversed, finding, “The combination of furtive movements, time
of night, previous notice from the property owner, potential parking violation, and
attempted movement from the scene when the police arrived sufficiently justified the
legality of the stop.” Id. at 1034. This Court granted allowance of appeal and reinstated
the trial court’s suppression order. Of relevance to the case at bar, we concluded that the
evidence of record was insufficient to justify an investigative detention and found the
Superior Court’s conclusion to be “unsupported by the record.” Id. We stated, “Although
the police had previous notice from the property owner of criminal behavior in the church
parking lot [including underage drinking, “doing donuts” and “laying rubber”], there was
absolutely no evidence that the vehicle in question engaged in the type of activities
complained of,” and that flight alone was insufficient to establish reasonable suspicion of
criminal conduct. Id. at 1034 & n.2.
10 Act of April 14, 1972, P.L. 233, as amended, 35 P.S. 780-101 – 780-144.
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We agree with Adams that the factual record in this matter bears a striking
resemblance to that of DeWitt, with the facts of DeWitt providing an even greater indicia
of criminal activity than was present here. Prior to the investigative detention, the only
facts that Officer Falconio articulated were that a car was parked behind a closed
business on public property at night. Officer Falconio did not observe Adams making any
furtive or suspicious movements, nor had he received notice of criminal behavior
occurring in that location, as the troopers had in DeWitt. Officer Falconio’s testimony
evinced only generalized concerns about the possibility of criminal activity occurring,
based solely upon time and place, i.e., behind closed businesses at night. He provided
no specific or articulable facts to support a belief that Adams was engaged or going to be
engaging in criminal activity. Rather, in his testimony, he expressed more of a curiosity
about what the driver was doing behind the closed businesses. See N.T., 8/25/2016, at
6, 9 (Officer Falconio testifying that he followed the vehicle behind the businesses
because he wanted “to see what the occupant or occupants of the vehicle were doing,”
“to see why a car drove behind two dark, closed businesses at [three] o’clock in the
morning,” and to ensure that “there wasn’t drug activity or an attempted burglary”). As in
DeWitt, here Officer Falconio offered no testimony that he observed Adams commit any
criminal offense or that Adams took any actions that might suggest that he was about to
commit any criminal offense. Officer Falconio merely observed a man sitting in his car at
night.
Both the Commonwealth and the courts below justify Officer Falconio’s action
based on the time of night and that Adams’ vehicle was parked in an atypical location.
As DeWitt makes clear, however, these factors alone do not give rise to a finding of
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reasonable suspicion of criminal activity where the officer provided no specific or
articulable facts to suggest that criminal activity is occurring or has occurred. See DeWitt,
608 A.2d at 1031-32.
We therefore conclude that Officer Falconio subjected Adams to an investigative
detention unsupported by reasonable suspicion of criminal activity. The trial court erred
by denying Adams’ suppression motion on that basis and the Superior Court erred in its
affirmance of that decision. As such, we reverse the decision of the Superior Court and
remand the matter to the trial court for further proceedings consistent with this Opinion.
Justices Baer, Todd, Dougherty and Wecht join the opinion.
Justice Mundy files a concurring and dissenting opinion in which Chief Justice
Saylor joins.
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