                              [J-70-2019] [MO: Saylor, C.J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                   EASTERN DISTRICT


    COMMONWEALTH OF PENNSYLVANIA,                 :   No. 39 EAP 2018
                                                  :
                        Appellee                  :   Appeal from the Order of Superior
                                                  :   Court entered on June 11, 2018 at
                                                  :   No. 1567 EDA 2017 reversing the
                 v.                               :   Order entered on April 20, 2017 and
                                                  :   remanding to the Court of Common
                                                  :   Pleas, Philadelphia County, Criminal
    HAROLD COST,                                  :   Division at No. CP-51-CR-0009310-
                                                  :   2015.
                        Appellant                 :
                                                  :   ARGUED: September 11, 2019


                                    DISSENTING OPINION


JUSTICE MUNDY                                                DECIDED: January 22, 2020
         In Commonwealth v. Au, 42 A.3d 1002 (Pa. 2012), this Court held an “arresting

officer’s request for identification” in light of the totality of circumstances1 “did not

transform his encounter . . . into an unconstitutional investigatory detention.” Id. at 1009.

We affirmed this rule in Commonwealth v. Lyles, 97 A.3d 298 (Pa. 2014), when we held

“Au’s limited premise is nothing new - it merely supported and reaffirmed well-settled

principles allowing officers to request identification without any level of suspicion, and

holding that a request alone does not constitute an investigative detention or seizure.” Id.

at 304 (citations omitted).2 This Court explained that “[n]otwithstanding [this] general

1 The Court considered that the officer did not activate the emergency lights on his vehicle,
did not position his vehicle to block the car Au was seated in, did not brandish a weapon,
did not make intimidating movements or an overwhelming show of force, did not make a
threat or command, and did not speak in an authoritative tone.
2   In Lyles, this Court considered the following factors:
principle, an encounter involving a request for identification could rise to a detention when

coupled with circumstances of restraint of liberty, physical force, show of authority, or

some level of coercion beyond the officer’s mere employment, conveying a demand for

compliance or that there will be tangible consequences from a refusal.” Id. Because the

factors giving rise to a detention set forth in Lyles were not present in this matter, I would

affirm the Superior Court’s order reversing suppression.

       The Majority notes that in this case, “the question of whether Appellant was subject

to an investigative detention at the relevant time is a close one[.]” Maj. Op. at 20. I agree.

In Lyles, this Court rejected the assertion that by writing down the information from

Appellant’s identification card the encounter had escalated to an investigative detention.

Herein, the majority notes “the retention by police of an identification card to conduct a

warrant check will generally be a material and substantial escalating factor within the

totality assessment.” Maj. Op. at 17. Herein, the record indicates the officers “jotted down

everybody’s name and date of birth that they gave, and their address[,]” and that the


       The request was not accompanied by physical restraint, manifestation of
       authority, or a mandate to comply. The officer simply asked for appellant's
       identification; he did not demand it or require acquiescence, and appellant
       gave it to him voluntarily. The officer did not express dissatisfaction with
       appellant's reply or tell appellant he was not free to leave. There is no
       evidence appellant was confined or prevented from departing, or that the
       officer impeded his movement in any way, as the interaction took place on
       a public street in broad daylight. There was no evidence the officer
       brandished a weapon or threatened appellant or that the interaction was per
       se coercive or intimidating. There is no record of the officer displaying an
       aggressive demeanor or using an authoritative tone suggesting there would
       be negative consequences if appellant failed to identify himself; he did
       nothing more than request appellant's identification. Had there been no
       repetitive furtive conduct by appellant, there is no reason to think the
       encounter would not have terminated promptly once the officer recorded the
       minimal information he requested.

Lyles, 97 A.3d at 306.



                             [J-70-2019] [MO: Saylor, C.J.] - 2
officers’ ran the identification information through dispatch over their radio. N.T., 4/20/17,

at 33, 42. In my view, this factor is analogous to Lyles, and did not escalate the encounter

to an investigative detention. The Lyles Court held, “we do not find the officer’s brief

recording of the card’s information raised the encounter to an investigative detention.

Quickly jotting down the information as opposed to attempting to memorize it, did not

restrain appellant’s freedom of movement.” Id. at 306. The Lyles Court did note “[t]he

officer did not question appellant further while he was holding the identification, and he

did not use appellant’s information to run a background check.” Id. at 306. Nevertheless,

questioning the appellant further or running a background check are factors to be

considered in the totality of the circumstances and are not determinative on their face.

See id. at 304 (holding that although cases like Au and Lyles “may serve as guideposts,

a suppression court must independently employ the totality-of-the-circumstances test in

determining whether a seizure occurred”).

       Viewing the totality of the circumstances present in this case, as we must, I am

unpersuaded that the interaction between Appellant and the officers escalated to the level

of an investigative detention. Ultimately, the Majority deems two factors as sufficient

evidence Appellant was not free to proceed about his business: the retention of

Appellant’s identification card to conduct a warrant check and the officer’s question

whether there was anything in the backpack he needed to know about. Id. at 18. These

two factors, in light of the totality of circumstances do not constitute the restraint of liberty,

physical force, a show of authority, coercion, or demand for compliance our well-

established case law has prescribed. During the officers’ encounter with Appellant,

Appellant proceeded to move his backpack, to which the officer inquired, “[Y]ou have

anything in that backpack I need to know about?” N.T., 4/20/17, at 10. Appellant

volunteered that he had a gun. Id. The officers testified they never removed their service




                              [J-70-2019] [MO: Saylor, C.J.] - 3
weapons from their holsters or indicated the men were not free to leave. The officers’ did

not activate sirens or lights, and they did not block the entrance to the alleyway. Id. at

13. Today’s holding is a departure from the totality of the circumstance assessments in

Au and Lyles, and represents a shift towards creating a per se rule that once an officer

has possession of an individual’s identification card, the encounter has escalated to an

investigative detention. Based on precedent, I do not agree with this shift and would

affirm on the basis of Au and Lyles. Accordingly, I dissent.




                            [J-70-2019] [MO: Saylor, C.J.] - 4
