Commonwealth v. Lyles

DISSENTING OPINION BY

LAZARUS, J.

I respectfully dissent. Contrary to the majority, I do not find the Supreme Court’s recent decision in Commonwealth v. Au, — Pa. -, 42 A.3d 1002 (2012), determinative, factually or legally, in this case. After reviewing the record and the relevant law, it is my opinion that Officer Dobbins subjected Lyles to an unlawful investigative detention, unsupported by reasonable suspicion. Therefore, the suppression court properly granted Lyles’ motion.

On July 11, 2009 at approximately 4:30 p.m., Officer Dobbins and his partner, both in uniform and in a marked car, approached Lyles and another male in front of a vacant property in Philadelphia. The officers exited their vehicle and asked Lyles who he was and why he was there. Lyles identified himself and informed the officers that his grandmother lived on the block. Not satisfied with this response, Officer Dobbins asked Lyles for identification, and began to write down the information. Under the totality of the circumstances here, this request elevated the interaction between the officers and Lyles to an investigative detention. We recognized this in Commonwealth v. Hudson, 995 A.2d 1253 (Pa.Super.2010), when we determined that an officer effectuated an investigative detention when he took and maintained possession of the citizen’s identification. Objectively, no reasonable person would believe he was free to ignore that command or free to leave. Clearly, Officer Dobbins’ command that Lyles produce proof of his identification would indicate to a reasonable person that this was no longer a situation where the officer was simply asking him to identify himself and what he and his companion were doing in the area. No reasonable person would have felt free to terminate the encounter. See Commonwealth v. DeHart, 745 A.2d 633, 639 (Pa.Super.2000) (holding investigative detention occurred when officer, after initial inquiry, exited vehicle and approached defendant because officer “chose to escalate *85the encounter to afford greater investigation, which, of course, is consistent with the purpose of an investigative detention.”).

In Au, the arresting officer, while on routine patrol in the early morning hours, came upon an automobile parked in a parking lot of a business premises. 42 A.3d at 1003. The officer positioned his police cruiser so that the lights illuminated the parked automobile. He approached the vehicle with a flashlight and saw six occupants, the four in the back seat appearing to be juveniles. Id. The officer inquired whether everyone was 18, and the four occupants in the back seat said no. Id. At this point the officer asked the male in the passenger seat for identification, and he opened the glove box. The officer saw two bags of what was clearly marijuana in plain view in the glove box. Id. at 1003-1004. In holding that the request for identification here did not transform the encounter into an investigatory detention, our Supreme Court framed the issue as “whether a seizure occurred in the circumstances reflected in the arresting officer’s undisputed testimony[.]” Id. at 1006 (emphasis added). The line separating mere encounters from investigative detentions cannot hinge on one factor alone. See Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 889-90 (2000).

In my opinion, an officer’s request for identification alone cannot transform a mere encounter into an investigative detention. However, in the circumstances here, where the officer is not satisfied with the citizen’s verbal response, and not satisfied with merely looking at his identification, but goes on to write down the information, there is no doubt that the officer is engaging in an investigation. Officer Dobbins’ act of recording Lyles’ information was a show of authority, indicating that Lyles was not free to leave. As the suppression court notes, “Even Dobbins believed that [Lyles] was not free to leave at that point.” Trial Court Opinion, 7/15/2011, at 4 (quoting N.T. Suppression Hearing, 3/15/2011, at 13). Without any reasonable suspicion of criminal activity, Officer Dobbins had no reason to go beyond questioning. See Commonwealth v. DeHart, supra at 639 (investigative detention occurred where officer, after initial questioning, exited vehicle and approached defendants because he “chose to escalate the encounter to afford greater investigation[.]”); see also Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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 majority frames the issue in such a way as to make the holding of Au determinative, that a request for identification does not automatically transform a mere encounter into an investigative detention. The majority states: “The sole issue presented for our review is whether an investigative detention occurred when Dobbins requested [Lyles’] identification.” Majority Opinion, at 80. The correct inquiry, in my view, is whether, under the totality of these circumstances, a reasonable person would have felt free to walk away. It is the totality of the circumstances, including those that arise after the request for identification, which determine whether an investigative detention has taken place. Strickler, 757 A.2d at 889-90.

Additionally, the majority also makes no attempt to reconcile the factual distinctions in these cases. Here, two men were in front of a building in the daylight hours. There were no reports of a crime in progress. Lyles identified himself at the officer’s request, and responded to the officer’s question about what he was doing *86there. By contrast, in Au the officer responded to an unusual situation, a car parked in a business lot in the middle of the night, while the business was closed, and where four of the car’s occupants were juveniles.

The majority states that this Court is “constrained by Au to conclude that the lower court erred by granting suppression in this case[.]” Majority Opinion, at 83-84. Accordingly, it interprets Au as establishing a bright-line rule that an officer’s request for identification does not elevate an encounter to an investigative detention. This approach disregards both the totality of the circumstances test as well as the critical factual distinctions between Au and this case. While the majority’s interpretation of Au is not incorrect, its application to the present matter is misplaced. Officer Dobbin’s actions placed Lyles in an unlawful investigative detention, not because he asked for his identification, but because the totality of the circumstances created a situation where a reasonable person would not feel free to walk away.

In conclusion, I find no error in the suppression court’s determination that, under the totality of the circumstances, Officer Dobbins’ request for identification here elevated the encounter to an investigative detention unsupported by reasonable suspicion of criminal activity. I would affirm the suppression court’s order.