Commonwealth v. Moyer

DISSENTING OPINION BY

ORIE MELVIN, J.:

¶ 1 I respectfully disagree with the majority’s affirmation of the order granting the suppression of evidence seized as a result of a search of an automobile driven by Appellee, Terry E. Moyer. Specifically, I disagree with interpretation of the applicable case law as applied to these facts offered by the majority’s opinion in support of affirming. Rather, I would find that application of the Strickler factors weighs in favor of the opposite result. That is, I agree with the Commonwealth’s position that the latter portion of the interaction between Appellee and the state police officers was a mere encounter, not an investigative detention, and that Appellee’s consent to search was given voluntarily. Thus, I would find Appellee’s consent to search his vehicle was valid, and reverse the order which granted Appellee’s motion to suppress.

¶ 2 First, I observe that the initial detention of Appellee ended when Corporal Mays issued the written warning, returned Appellee’s license and registration, and advised Appellee that he was free to leave. Contrary to the majority’s viewpoint, I find that the circumstances surrounding the interaction in Strickler were substantially identical to those involved in the instant case in that both interactions occurred on a rural road in the late evening/early morning hours, after the accused had been detained by two uniformed officers. Our Supreme Court expressly determined that these circumstances lacked coercive effect. Id. at 76-78, 757 A.2d at 900. In addition, subsequent questioning unrelated to the purpose of the original stop does not pose a federal constitutional impediment to the consent protocol immediately following a typical traffic stop. Id. at 67-68, 757 A.2d at 895. Moreover, the majority’s conclusion that the fact that the troopers were armed is a factor weighing in favor of having a coercive effect is not supported by the case *671law. See id. at 73 n. 22, 757 A.2d at 898 n. 22 (citing Florida v. Bostick, 501 U.S. 429, 432, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (noting that there was no evidence suggesting that the officer’s “gun was ever removed from its pouch, pointed at Bos-tick, or otherwise used in a threatening manner”). Instantly, Appellee testified that the troopers were courteous to him and did not display their weapons to him during the interaction.

¶ 3 Finally, although the accused in Strickler was advised of his right to refuse to consent to the search, he was not advised, as was Appellee, that he was free to leave after the conclusion of the initial segment of the traffic stop. The Strickler Court held that the advice that the accused was free to refuse consent acted as a counterweight to the officer’s failure to expressly advise the accused that he was free to leave. Id. at 78, 757 A.2d at 901. Conversely, in the case sub judice, Corporal Mays’s advising Appellee that he was free to leave acted as a counterweight to Corporal Mays’s failure to expressly advise Appellee that he had the right to refuse consent. Significantly, at the time Corporal Mays asked Appellee to answer a few more questions, Appellee had not yet reentered his vehicle, and Corporal Mays thus had no opportunity or reason at that point to direct Appellee to step out of his vehicle or otherwise to direct him to move. Compare Commonwealth v. Freeman, 563 Pa. 82, 90, 757 A.2d 903, 907 (2000) (stating that “most significantly,” it was the officer’s direction to a previously-stopped motorist to step out of her vehicle that indicated an investigative detention). Based upon the foregoing and the controlling authority of Strickler, I would conclude that the latter portion of Appellee’s interaction with Corporal Mays and Trooper Hertzog was a mere encounter and not a second, independent investigative detention.

¶ 4 Because Corporal Mays and Trooper Hertzog did not engage in the requisite show of authority during the latter portion of their interaction with Appellee for it to be characterized as a seizure or an investigatory detention, and, therefore, no second investigative detention occurred, it necessarily follows that Appellee’s consent to search his car was valid so long as it was voluntarily given. See Strickler, supra, at 78 n. 27, 757 A.2d at 901 n. 27. Voluntariness is assessed pursuant to the following legal precepts:

When evaluating voluntariness of consent, the totality of the circumstances must be evaluated. While there is no hard and fast list of factors evincing voluntariness, some considerations include: 1) the defendant’s custodial status; 2) the use of duress or coercive tactics by law enforcement personnel; 3) the defendant’s knowledge of his right to refuse to consent; 4) the defendant’s education and intelligence; 5) the defendant’s belief that no incriminating evidence will be found; and 6) the extent and level of the defendant’s cooperation with the law enforcement personnel.

Commonwealth v. Gillespie, 573 Pa. 100, 106-07, 821 A.2d 1221,1225 (2003) (opinion announcing judgment of the court) (citations and quotation omitted). The mere presence of police, who naturally are armed, is not in and of itself coercion. Id. at 107, 821 A.2d at 1225.

¶ 5 In the case sub judice, the trial court made no independent conclusion concerning voluntariness. Further, although the suppression court noted that Appellee appeared to be “somewhat slow,” this alone does not render the consent involuntary. As the Supreme Court stated in Strickler, “The reasons supporting the conclusion that Strickler was not seized at the time that he lent his consent to the vehicle search therefore also militate strongly in *672favor of a determination that his consent was voluntary.” Id. at 79-80, 757 A.2d at 902. The same analysis is appropriate in the instant matter, and I would therefore conclude that, applying the Gillespie factors to the facts as developed at the suppression hearing, Appellee’s consent to search his vehicle was voluntary.

¶ 6 Because I have determined that Ap-pellee gave valid consent to search his car and that the suppressed evidence was thus the product of a lawful search, I would reverse the order granting suppression. Therefore, I respectfully dissent.