J-A28041-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON JAMES KIFER :
:
Appellant : No. 1352 WDA 2019
Appeal from the Judgment of Sentence Entered August 5, 2019
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0001255-2018
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 29, 2020
Brandon James Kifer (Appellant) appeals from his judgment of sentence
entered in the Court of Common Pleas of Clearfield County, and from the trial
court’s pretrial order denying suppression based on Appellant’s assertion that
the investigating officers lacked reasonable suspicion and probable cause to
detain him. He also challenges the weight and sufficiency of the evidence
supporting his conviction, and argues that a mistrial should have been granted
due to police officer testimony referring to outstanding warrants and police
fears that Appellant would not appear at trial, as detailed infra. We reverse
the trial court’s denial of suppression and vacate the judgment of sentence.
Therefore, we need not reach Appellant’s claims as to sufficiency and denial
of his mistrial motion.
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Appellant opted to be tried by a jury, and was convicted at the close of
his jury trial of Possession with Intent to Deliver a Controlled Substance
(PWID)1 and Possession of Drug Paraphernalia.2
The trial court summarized the facts as follows:
On December 7, 2018, Officers from the Lawrence Township
Police Department responded for the purpose of a welfare check
at [Walmart] at 1:30 in the afternoon due to the report of
someone passed out behind the wheel of a vehicle. When Officers
arrived on scene, Officers did not activate their overhead lighting
and observed [Appellant’s] vehicle parked across two or three
parking spaces. Chief Clark pulled his cruiser behind the vehicle
while Officer Routch pulled his cruiser near the front of the vehicle
approximately one parking spot away to allow [Appellant] to pull
away if he chose to do so. At that time, they observed [Appellant]
passed out and slumped over the wheel of the vehicle, and, after
some time, were able to wake him up.
Upon making contact with [Appellant], Officer Routch
observed a very slow, lethargic demeanor and that [Appellant]
spoke with a raspy voice and slurred speech. [Appellant]
explained that he was just tired; however, when asked why he
was tired, [he] indicated that he had just taken a Subutex. At
that time, Officer Routch believed that [Appellant] was impaired;
therefore, he asked [Appellant] to step out of the vehicle for
standardized field sobriety testing. Following sobriety testing
which indicated impairment, [Appellant] agreed to go to the
Lawrence Township Police Department for an evaluation by a drug
recognition expert and was placed into custody on suspicion of
driving under the influence of a controlled substance. At that
time, a search incident to arrest produced two bags of
methamphetamine.
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1 35 P.S. § 780-113(a)(30) (the substance in question was
methamphetamine). Appellant was also convicted of Knowing and Intentional
Possession of methamphetamine (K&I) (35 P.S. § 780-113(a)(16)), which is
subsumed in the PWID conviction.
2 35 P.S. § 780-113(a)(32).
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On December 9, 2018[,] the Lawrence Township Police
Department filed charges of Driving Under the Influence of a Drug
or Combination of Drugs (M1), [PWID](F), [K&I](M)[,] and Use or
Possession of Drug Paraphernalia(M) against [Appellant]. The
charges were filed as a result of the Police Department coming
into contact with [Appellant] in the parking lot of the [Walmart]
Supercenter located at 100 Supercenter Drive, Clearfield,
Lawrence Township, Pennsylvania, on December 7, 2018. Officers
were dispatched to [Walmart] as a result of a complaint being
made that a man was misparked and sleeping in his car in the
parking lot. The police found [Appellant], and believed that he
was impaired. Field sobriety tests were conducted and [Appellant]
agreed to see a drug recognition expert at the police station. A
pat down search was conducted at which time approximately 61
grams of methamphetamine as well as various drug paraphernalia
was found to be in [Appellant’s] possession.
[Appellant] was taken before a Magisterial District Judge
with cash bail being set, which [Appellant] was unable to post.
His preliminary hearing was scheduled for December 19, 2018
where, being represented by counsel, [Appellant waived his
preliminary hearing]. Defense counsel [ ] filed a Suppression
Motion on March 13, 2019. Hearing on the same was held April
26, 2019 and as a result of the same following the Court’s receipt
of the parties[’] briefs, by this Court’s order of July 2, 2019
[Appellant’s] Motion to Suppress Evidence was dismissed.
On April 26, 2019, a hearing was held regarding the issues
raised in [Appellant’s] Motion to Suppress Evidence. [Appellant’s]
position was that he was detained without reasonable suspicion or
probable cause; therefore, all evidence obtained from [Appellant]
must be suppressed. However, the Court found that based on the
totality of the circumstances the initial contact in this matter was
a “mere encounter” and the level of interaction only escalated to
an “investigatory detention” upon the Officer’s reasonable
suspicion that [Appellant] was operating a vehicle under the
influence of a controlled substance.
[Appellant’s] jury was selected on June 13, 2019 and the
trial held on July 20, 2019. The jury found [Appellant] guilty of
[PWID, K&I], and Use/Possession of Drug Paraphernalia.
[Appellant] was found not guilty of Driving Under the Influence of
a Drug or Combination of Drugs. Following the completion of a
presentence investigation report [Appellant] was sentenced on
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August 5, 2019. On [PWID, an ungraded felony,] he was
sentenced to a $1.00 fine, plus costs, and a minimum of [five]
years and a maximum of [ten] years in state prison. The [K&I]
charge merged and on the Drug Paraphernalia charge he was
sentenced to a $1.00 fine, plus costs and a concurrent period of
probation.
The Public Defender filed a Notice of Appeal on [Appellant’s]
behalf on August 29, 2019. The Public Defender’s office thereafter
withdrew from representation as they indicated [Appellant] would
be claiming that their office provided ineffective assistance of
counsel. As a result of the Public Defender’s withdrawal, Joshua
Maines, Esquire, was appointed to represent [Appellant]. An
Amended Notice of Appeal was filed on November 22, 2019.
Pursuant to this Court’s Order, [Appellant’s] Statement of Errors
Complained of on Appeal was filed on November 21, 2019.
Trial Ct. Op., 12/10/19, at 1-4 (paragraphs rearranged to reflect chronology).
Officer Routch testified that he asked Appellant for his identification almost
immediately upon rousing Appellant, and that Chief Clark took the
identification back to his vehicle to verify that Appellant was not subject to a
warrant or otherwise ineligible to drive. N.T. Trial, 7/10/19, at 131-32.
Appellant raises the following arguments:3
1. Whether the [trial] court erred by denying Appellant’s motion
to suppress evidence, where [officers] did not have sufficient
cause to conduct an investigative detention.
1A. Whether Appellant was seized for an investigatory
detention when officers positioned their vehicles to the front
and rear of Appellant’s vehicle, and both uniformed officers
approached Appellant and knocked on the window of his
driver’s side door.
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3We omit Appellant’s arguments as to sufficiency and his mistrial motion, as
we need not reach them.
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1B. Whether officers had reasonable suspicion that criminal
activity was afoot at the time officers seized Appellant.
Appellant’s Brief at 7.
As to suppression, Appellant argues that police lacked reasonable
suspicion that he was engaged in criminal activity when they positioned two
police vehicles in front of and behind his vehicle while he slept in a Walmart
parking lot. Appellant’s Brief at 20. Appellant argues that the way police
parked indicated to him that he could not leave, and at that time he did not
feel free to leave the scene; nor would a reasonable person have felt free to
leave under those circumstances. Id. He argues that the detention was not
supported by sufficient indicia of criminal activity. Id. Because the police
compounded the initial show of force by pounding on his window and removing
him from his car, at no point did he feel free to leave, nor would a reasonable
person have felt free to leave. Id. Appellant asserts that the police violated
his rights under the Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution. Id.
The Commonwealth argues that this was initially a mere encounter, and
that the police lacked investigatory intent when they responded to the parking
lot. Commonwealth’s Brief at 2. The Commonwealth asserts that Appellant
posed a danger to people and property when he was improperly parked and
slumped over his steering wheel. Id. Likewise, the trial court characterizes
the initial stage of the interaction as a mere encounter, consistent with a
welfare check. Trial Ct. Op. at 5.
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This Court must determine when Appellant was detained, and whether
police were legally justified in detaining him. Appellant argues that he was
detained at the moment police approached his vehicle, after parking marked
police cars at the front and rear of his vehicle. Appellant’s Brief at 26. The
Commonwealth asserts that this was a mere encounter, and it did not escalate
to an investigatory detention until officers spoke with Appellant and observed
indicia of intoxication, giving them reasonable suspicion that he was driving
under the influence. Commonwealth’s Brief at 9-12.
When our appellate courts review suppression decisions, the trial court’s
factual findings are binding to the extent they are supported by the record,
and its legal conclusions are reviewed de novo. Commonwealth v. Adams,
205 A.3d 1195, 1199 (Pa. 2019), cert. denied sub nom. Pennsylvania v.
Adams, 140 S.Ct. 2703 (2020). There are three levels of interaction between
peace officers and citizens: mere encounters, investigatory detentions, and
arrests, or custodial detentions. Id. at 1199-1200.
Mere encounters need not be supported by any level of suspicion of
illegality, but an investigatory detention must be supported by reasonable
suspicion of criminal activity. Adams, 205 A.3d at 1200. The line between
mere encounters and investigatory detentions is demarcated by an objective
test known as the “free to leave” test. Id.; see also Florida v. Bostick, 501
U.S. 429, 434 (1991) (“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.”); Terry v. Ohio, 392
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U.S. 1, 19, n.16 (1968) (“Only 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.”). 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.’” Adams, 205 A.3d at 1200, quoting Bostick, 501
U.S. at 437.
In Adams, our Supreme Court analyzed a situation in which a police
officer, upon approaching a parked car and seeing the occupant open the door,
pushed the door closed. Adams, 205 A.3d at 1197. The officer requested
that the car’s occupant instead open the window, and when the occupant
reported that he could not do so, requested that he stay in the car until backup
arrived, which it did shortly thereafter. Id. at 1197-98. The Court found that
the act of shutting the door was “both an act of physical force and a show of
authority” and “precisely the type of escalatory factor that compels a finding
that a seizure occurred” – therefore, the Court concluded that “no reasonable
person in Adams’ shoes would have felt free to leave.” Id. at 1201.
In Commonwealth v. Powell, 228 A.3d 1 (Pa. Super. 2020), this Court
analyzed a situation wherein two officers in an unmarked car approached an
individual in a parked but running truck, parked perpendicular to the painted
parking spots. Id. at 2-3. They had parked the unmarked police vehicle
directly behind the truck, but had not activated its lights. Id. at 3. As in this
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incident, the officers had not observed any driving or other indicia of illegality.
Id. The officers approached the truck on both sides. Id. at 5.
The Commonwealth encourages us to distinguish Powell based on the
fact that the trial court in Powell ruled in favor of suppression, whereas the
trial court here denied suppression.4 Commonwealth’s Brief at 12. This we
decline to do, as trial court’s factual findings are entitled to our deference, but
its legal conclusions are not. Because the facts here are markedly similar to
Powell, we must apply it to conclude that the show of force inherent in
positioning two marked police cars fore and aft the parked vehicle and
approaching from those two cars creates a situation that a reasonable person
would not feel able to sidestep, however politely. It is hard to imagine
Appellant simply opting out of this interaction and driving away, no matter
that there was apparently just enough space for him to do so.5
Obviously, a marked car must be considered a more overt show of force
than an unmarked car, and two marked cars more than one. Further, parking
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4 The Commonwealth also argues essentially that suppression is inappropriate
because Appellant’s condition at the time police approached him suggested
that he might be in need of assistance, and “a mere encounter should be
encouraged for the benefit of the Appellant as well as the general public.”
Commonwealth’s Brief at 11. We note that peace officers can perform
wellness checks without collecting evidence for subsequent prosecutions;
there is nothing about the enforcement of search and seizure laws that should
dissuade any first responder from assisting someone in distress.
5 Officer Routch testified that he parked one parking spot away from
Appellant’s truck, to the front of the truck. N.T. Suppression Hrg, 4/26/19, at
27.
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them in the fore and aft position strongly suggests that the officers made a
conscious choice to surround Appellant. This parking move is analogous to
the approach to both the driver’s and passenger’s side of the vehicle in
Powell.
Further, when they approached Appellant’s vehicle, the officers asked
Appellant for his identification almost immediately upon rousing him and Chief
Clark took the identification back to his car, while Officer Routch continued to
question Appellant, eventually leading to Routch conducting field sobriety
testing. N.T. Trial, 7/10/19, at 131-33; N.T. Suppression Hrg, 4/26/19, at
17-18.6 Our Supreme Court recently confirmed that under most
circumstances, a reasonable person would not feel free to go when a member
of law enforcement has their identification. Commonwealth v. Cost, 224
A.3d 641, 651 (Pa. 2020) (“the retention by police of an identification card to
conduct a warrant check will generally be a material and substantial escalating
____________________________________________
6 Officer Routch testified that “We had both made contact with [Appellant].
And upon getting his information, we simply asked him if he had any form of
identification . . . [h]e willingly gave it to us. Chief Clark took it back to his
vehicle, and I began to have conversations with [Appellant] . . . I just asked
him why he was tired. He told myself that he had just taken a Subutex.” N.T.
Suppression Hrg, 4/26/19, at 17-18. At trial, Officer Routch testified that the
two officers approached Appellant’s car and woke him, and they were then
able to “speak with him for a little bit.” N.T. Trial, 7/10/19, at 131. “At that
time, I did ask him for his identification, which he did hand it to me. I then
gave the identification to Chief Clark for him to run while I went back and
spoke with [Appellant].” Id. at 131-32. He said he asked Appellant why he
was tired, and “[Appellant] had told this officer that he had taken a Subutex.”
Id. at 133. Officer Routch then asked Appellant to get out of his car so that
they could conduct field sobriety testing. Id.
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factor within the totality assessment”). Chief Clark walked away from
Appellant with Appellant’s identification immediately, allowing Officer Routch
to continue the conversation in which he elicited that Appellant had taken a
Subutex.
Because application of Powell and Cost renders it clear that Appellant
was subject to an investigatory detention when police first approached his
vehicle or very shortly thereafter, we must determine whether this level of
encounter was supportable. Constitutional compliance mandates that police
initiating an investigative detention must have a reasonable suspicion, based
on objective facts, that the targeted individual is involved in criminal activity.
Brown v. Texas, 443 U.S. 47, 51 (1979); Commonwealth v. Strickler, 757
A.2d 884, 889 (Pa. 2000). The courts, following the lead of the United States
Supreme Court, have “consistently eschewed bright-line rules in favor of
assessment of the totality of the circumstances.” See id. at 893. “[T]o
establish grounds for reasonable suspicion, the officer must articulate specific
observations which, in conjunction with reasonable inferences derived from
those observations, led him reasonably to conclude, in light of his experience,
that criminal activity was afoot and that the person he stopped was involved
in that activity.” Commonwealth v. Reppert, 814 A.2d 1196, 1204 (Pa.
Super. 2002) (citation omitted).
The Commonwealth cites the following factors in support of the stop:
Appellant was parked in a rear Walmart parking lot in a way that transgressed
the painted lines demarcating parking spots. Commonwealth’s Brief at 6.
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Appellant was unconscious and resting on the steering wheel. Id. The officers
testified that the vehicle was running, but they did not see Appellant drive or
attempt to drive. Id. at 10; Trial Ct. Op. at 3-4.
The Commonwealth acknowledges that “[i]t was only after the officers
approached the vehicle and woke up Appellant that they acquired reasonable
suspicion that he was Driving Under the Influence . . . .” Commonwealth’s
Brief at 12. The problem, of course, is that he was already detained by then.
He was detained at the point that the police parked him in, though they left
one parking spot as a margin, and certainly he was detained when Chief Clark
walked away from him, holding his identification. See Cost, 224 A.3d at 651
(police retention of citizen identification for warrant check is substantial
escalating factor for totality assessment). All of this happened prior to
Appellant’s admission that he had taken a medication that causes drowsiness.
An anonymous report that someone was “misparked” and sleeping is not
sufficient to support an investigatory detention. See, e.g., Commonwealth
v. Wimbush, 750 A.2d 807, 812 (Pa. 2000) (anonymous tip alone insufficient
for reasonable suspicion that criminal activity was afoot).
The trial court did not have the benefit of our opinion in Powell at the
time it performed its suppression analysis, but Powell does not break new
ground. It is consistent with Cost and its pragmatic application of the “free
to leave” standard. Because we find that the trial court erred in denying
suppression, we need not reach Appellant’s argument as to sufficiency of the
evidence and propriety of denial of his mistrial motion.
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July 2, 2019 order denying suppression reversed. Judgment of sentence
vacated. Remanded for proceedings consistent with this memorandum.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2020
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