Commonwealth v. Johnson

JOHNSON, J.,

Dissenting.

¶ 1 I respectfully dissent. The Majority determines that Trooper Overcash had *766reasonable suspicion to conduct an investigative detention of Kwasi Johnson and concludes accordingly that the trial court did not err in refusing to suppress evidence of contraband the trooper seized from Johnson’s person. In support of this conclusion, the Majority reasons that Trooper Overcash was legally entitled to rely on observations made during a routine traffic stop that concluded prior to the beginning of the encounter at issue here. I find nothing in the case law the Majority cites that compels or even allows such a process. Moreover, I find Trooper Over-cash’s observations during the second encounter insufficient to detain this defendant.

¶ 2 Where, as here, the detention at issue follows a prior valid traffic stop, an arresting officer must demonstrate cause for suspicion after the end of the initial stop independent of any basis on which he conducted that stop. See Commonwealth v. Ortiz, 786 A.2d 261, 266 (Pa.Super.2001). Thus, in Ortiz, we recognized that even where a defendant’s conduct during the initial stop “may have merited further inquiry,” the arresting officer’s instruction to the defendant that he was free to leave vitiated any grounds he had to hold the defendant further. See id. Absent some new observation of suspicious circumstances, the defendant’s continued detention was illegal. See id. (“Without the existence of a reasonable suspicion after the first encounter had ended, the second detention was unlawful.”). See also Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903, 908 (2000) (finding seizure illegal where arresting officer told defendant she was free to go after initial stop and failed to identify suspicious conduct during subsequent stop).

¶ 3 In this case, the Majority interprets Freeman and Ortiz to allow an officer effectively to combine his observations during the second encounter with his observations during the first in order to formulate reasonable suspicion to conduct a seizure. I find nothing in either Freeman or Ortiz that counsels such a result. Indeed, in Ortiz, we carefully enunciated that notwithstanding an officer’s observations or suspicion during the first encounter, renewed detention after that encounter has ended must be supported by new suspicion and new observations. See Ortiz, 786 A.2d at 266 (reasoning that “[wjhile Ortiz’s behavior during the initial investigative detention may have merited further inquiry to determine if his anxiety was due to illegal conduct, nothing happened after the conclusion of the initial stop to provide Officer Baur further cause for suspicion.”) (original emphasis). In accordance with this rationale, the “conclusion of the initial-stop” is significant, in part, because it forecloses the ability of the detaining officer to hold a citizen on the basis of observations he made, but on which he did not act in a timely manner. See id. at 265. I fail to discern, how, when an officer has observed circumstances he chooses not to investigate during an initial stop, he may then be entitled to cite those very circumstances to support a subsequent detention. In my view, Ortiz requires that any observations after the “conclusion of the initial stop” must stand independently to support a subsequent stop.

¶ 4 Having considered the totality of circumstances following the “conclusion of the initial stop,” I cannot conclude that Trooper Overeash’s observations are sufficient to establish grounds for detention. Here, Trooper Overcash relied on the driver’s nervousness when asked if there was anything illegal in the car and his “inconsistent” statements concerning the trip that he, Johnson, and Linnen-Fuqua were making from Philadelphia. This Court has held expressly that a citizen’s nervous demeanor, even when combined with related *767factors, does not constitute a lawful basis for investigative detention. See Commonwealth v. Reppert, 814 A.2d 1196, 1206 (Pa.Super.2002) (en banc) (finding nervous demeanor and furtive movements insufficient basis for investigative detention); see also Commonwealth v. Sierra, 655 Pa. 170, 723 A.2d 644, 647 (1999) (plurality opinion) (finding nervous demeanor insufficient basis for detention even when combined with suspicion that the defendant had stolen motorcycle parts in the back of the car stopped); Commonwealth v. DeHart, 745 A.2d 638, 638 (Pa.Super.2000). I find no material difference between the conduct observed in those cases and the conduct observed here after the conclusion of the initial stop. In this case, Trooper Over-cash saw that the driver of the car (not Johnson) told a questionable story concerning the trio’s inability to afford a hotel in Philadelphia and appeared very nervous as he did so. Thus, as in the cases cited above, the detaining officer observed little objective conduct and relied instead on a subjective interpretation of the citizen’s manner and bearing and his response to the stress of police interaction. As we observed in Reppert, such “observations” establish “nothing more than a ‘hunch’ employing speculation about the citizen’s motive in the place of fact.” 814 A.2d at 1206. Such speculation is not sufficient basis upon which to conduct a lawful seizure. See id.

¶ 5 Therefore, I respectfully dissent.