J-A18005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

DANIEL MALDONADO,

                            Appellee                  No. 1781 MDA 2015


              Appeal from the Order Entered September 15, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000777-2015


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 07, 2016

        The Commonwealth appeals from the order suppressing evidence

seized from Appellee, Daniel Maldonado. The Commonwealth contends that

the suppression court erred by impermissibly relying on the subjective intent

of the arresting officer in reaching its conclusion that Appellee was subjected

to a temporary investigative detention, and that the detention was not

supported by reasonable suspicion. After careful review, we affirm.

        The suppression court summarized the pertinent facts from the

suppression hearing as follows:

             Detectives Ryan Mong and Lawrence Minnick (herein Det.
        Mong and Det. Minnick) of the Lebanon County Drug Task Force
        were conducting surveillance in the area of North 9th and
        Crowell  Streets   in   Lebanon    City,  Lebanon    County,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A18005-16


     Pennsylvania[,] on the morning of January 29, 2015. Det.
     Minnick testified that this area is a high crime area, specifically
     for crimes involving drugs and violence. At approximately 11:30
     a.m., the Detectives noticed an Hispanic male approach a black
     Nissan sedan that was parked in a parking lot off of Crowell
     Street. The Hispanic male was later identified to be Daniel
     Maldonado (herein [Appellee]). Detectives allege that they
     observed [Appellee] enter the vehicle, remain in the vehicle for
     approximately thirty (30) seconds, and then exit the vehicle.
     Detectives aver that the vehicle drove away after [Appellee]
     exited. Detectives further allege that after exiting the vehicle,
     [Appellee] was observed to be walking back and forth between
     Crowell and Mifflin Streets. Detectives testified that the above
     described behavior was suspicious.

            The Detectives approached [Appellee] and asked to speak
     with him and he agreed. At this time, both Detectives were in
     plain clothes, with their weapons concealed.          Det. Minnick
     testified that they had their badges visible and identified
     themselves to [Appellee] upon initiating the interaction.
     Detectives told [Appellee] what they had observed and why they
     had approached him. Det. Minnick testified that the tone of the
     interaction was conversational.         [Appellee] produced his
     identification when it was requested. Det. Mong wrote down the
     information and returned the identification to [Appellee]. Det.
     Mong ran the information for warrant[s], which came back
     negative. Detectives testified that it is their practice to return
     identification to an individual as soon as possible so that the
     person feels free to leave. When asked what he was doing in the
     area, [Appellee] told Det. Minnick that he was getting fresh air
     and that he enjoyed the cold. At the [p]re-[t]rial [h]earing,
     [Appellee] testified that he was in the area to get lunch.

           Detectives asked [Appellee] if he had any weapons, drugs,
     or contraband on his person.        [Appellee] responded in the
     negative. Detectives testified that they asked [Appellee] if he
     would consent to a search of his person and that he voluntarily
     consented. [Appellee] avers that he was asked to consent to a
     search, but that he declined and the Detectives conducted the
     search anyway. After being patted down, Detectives found a
     cigarette pack. Inside the cigarette pack was a cigarette that did
     not look like the others in the pack. When asked, [Appellee]
     admitted that it was marijuana.



                                    -2-
J-A18005-16


              Detectives testified that the entire interaction was
        approximately five to ten (5-10) minutes long. At the end of the
        interaction, [Appellee] was permitted to leave and was told that
        he would be charged as a result of the marijuana found on him.

Suppression Court Opinion (SCO), 9/15/15, at 2-4.

        Appellee was charged with possession of paraphernalia, 35 P.S. § 780-

113(a)(32),1 and possession of a small amount of marijuana, 35 P.S. § 780-

113(a)(31)(i). He filed a suppression motion on July 2, 2015, challenging 1)

the legality of the stop, premised on the allegation that the detectives lacked

reasonable suspicion to conduct an investigative detention, as well as 2) the

legality of the subsequent search as the fruit of that illegal stop, and due to

his factual assertion that consent to search was not given. The suppression

court held a hearing on that motion on July 25, 2015, at which Det. Mong,

Det. Minnick, and Appellee testified. After further briefing by both parties,

the suppression court issued an opinion and order granting Appellee’s

suppression motion on September 15, 2015.

        The Commonwealth filed a timely notice of appeal on October 14,

2015.     The Commonwealth also filed a timely, court-ordered Pa.R.A.P.

1925(b) statement on October 29, 2015.           On November 3, 2015, the

suppression court issued an order in lieu of a Rule 1925(a) opinion,

indicating that it was relying on its September 15, 2015 opinion.

____________________________________________


1
  The Commonwealth separately charged Appellee for the cigar wrapper that
contained the small amount of marijuana. Thus, both charges stemmed
from Appellee’s possession of a single marijuana ‘joint’ or ‘blunt.’



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       The Commonwealth now presents the following question for our

review: “Whether the [suppression] court erred in finding that [Appellee]

was the subject of an unlawful detention?” Commonwealth’s Brief at 4

(unnecessary capitalization omitted).

              When reviewing an [o]rder granting a motion to suppress
       we are required to determine whether the record supports the
       suppression court's factual findings and whether the legal
       conclusions drawn by the suppression court from those findings
       are accurate. In conducting our review, we may only examine
       the evidence introduced by appellee along with any evidence
       introduced by the Commonwealth which remains uncontradicted.
       Our scope of review over the suppression court's factual findings
       is limited in that if these findings are supported by the record we
       are bound by them. Our scope of review over the suppression
       court's legal conclusions, however, is plenary.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(quoting Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008)).

       As a threshold matter, we must address waiver. The Commonwealth’s

statement of the question and the Commonwealth’s Rule 1925(b) statement

both   appear    to   raise    a   single    issue/claim   for   our    review.        See

Commonwealth’s Brief at 4; Commonwealth’s Rule 1925(b) Statement, at 1

(single page) (“The [suppression] court erred in granting [Appellee]’s

[m]otion to [s]uppress after finding that [Appellee] was the subject of an

unlawful    investigative     detention.”).       The   argument       section    of   the

Commonwealth’s brief, however, raises two, and perhaps three distinct

claims.    The Commonwealth’s argument section contains two subsections,

the first addressing the claim that the court erred in determining that



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Appellee was subjected to an investigative detention. We conclude that this

claim has clearly been preserved for our review.

     The   second   subsection   presents   a   wholly   separate   argument,

contending that Appellee voluntarily consented to the subsequent search.

That issue is not only entirely separate from the nature and legality of

preceding stop, but it was also not raised in the Commonwealth’s Rule

1925(b) statement, see Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.

1998) (“Any issues not raised in a 1925(b) statement will be deemed

waived.”), and it was not separately set forth in the Commonwealth’s

statement of questions involved.   See Rule 2116(a) (“No question will be

considered unless it is stated in the statement of questions involved or is

fairly suggested thereby.”); Thomas v. Elash, 781 A.2d 170, 176–77 (Pa.

Super. 2001) (“Pennsylvania Rule of Appellate Procedure 2116(a) mandates

that an appellant must present all issues on appeal in the [s]tatement of

[q]uestions [i]nvolved section of his brief. This rule is to be considered in

the highest degree mandatory, admitting of no exception; ordinarily, no

point will be considered which is not set forth in the statement of questions

involved or suggested thereby.”) (quotation marks omitted); but see Rule

2116(a) (“The statement will be deemed to include every subsidiary

question fairly comprised therein.”). Appellee’s consent (or lack thereof) to

the search is not a subsidiary issue to the separate question of whether

Appellee was subjected to an investigative detention. A stop is not a search,

and a search is not a stop. Thus, we deem the Commonwealth’s consent-

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J-A18005-16



related arguments to be waived under Lord, for its failure to raise the

consent issue in its Rule 1925(b) statement, and also waived under Rule

2116(a), for the Commonwealth’s failure to separately raise that issue in its

statement of the questions involved.2

       Because the Commonwealth waived its consent-related claim, it is not

entitled to any form of relief on its preserved claim.    The nature of the


____________________________________________


2
  We find waiver particularly appropriate in this circumstance, because the
suppression court’s opinion only briefly touches upon the question of
consent, see SCO at 11-12. Notably, the suppression court’s opinion lacks
any specific credibility determinations regarding 1) Appellee’s claim that he
did not consent; and 2) the detectives’ claim that he did. Instead, the
suppression court appears to have only addressed whether it should even
reach the matter of consent, given the fact that it had already determined
that Appellee was illegally detained without reasonable suspicion. The court
did conclude that “even if [Appellee] did give consent to the search of his
person, such consent was involuntary under the circumstances.” Id. at 12
(emphasis added). However, as phrased and in the context of the preceding
analysis appearing in the opinion, the referenced ‘circumstances’ were not
credibility determinations, but the fact that the court had concluded that
Appellee was illegally detained.

      Had the Commonwealth raised the matter of consent separately in its
Rule 1925(b) statement, particularly since it was already aware of the
suppression court’s opinion (as it had accompanied the order granting
suppression), the suppression court could have rendered a more specific
analysis regarding the matter of consent in a Rule 1925(a) opinion instead of
merely relying on the already-issued opinion. See Commonwealth v.
Castillo, 888 A.2d 775, 779 (Pa. 2005) (holding that “the Lord[] rule
remains necessary to insure trial judges in each appealed case the
opportunity to opine upon the issues which the appellant intends to raise,
and thus provide appellate courts with records amendable to meaningful
appellate review”).




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J-A18005-16



Commonwealth’s preserved claim is that the suppression court erred by

concluding that Appellee was subjected to an investigative detention by the

detectives.    However, if, as the Commonwealth argues, Appellee was only

subjected to a ‘mere encounter’ - there must still be a legal justification for

the subsequent search that yielded Appellee’s marijuana cigarette.       At no

point does the Commonwealth argue, or even suggest, that the search which

yielded the contraband was based upon probable cause to search for such

contraband.3     Instead, it is patently clear from the record that the search

was justified only by Appellee’s alleged consent. Thus, the legal conclusion

that Appellee was subjected to investigative detention rather than a mere

encounter, even if erroneous, cannot alone justify the reversal of the order

granting suppression.         Even if Appellee was lawfully detained (or not

detained), there was no showing of probable cause to conduct the

subsequent search that yielded the suppressed contraband.

       Accordingly, we conclude that the Commonwealth has failed to meet

its burden on appeal to show that the trial court’s order granting suppression
____________________________________________


3
  There is also no evidence of record, nor any argument made by the
Commonwealth, suggesting that the detectives had a reasonable suspicion
to search Appellee for a weapon. “[A] protective search cannot be justified
… unless the officer can articulate facts that establish an individualized,
objective basis for perceiving a threat of armed violence.” Commonwealth
v. Grahame, 7 A.3d 810, 816 (Pa. 2010). Nevertheless, even if the
detectives possessed reasonable suspicion to conduct a pat-down search of
Appellee for weapons, they did not, in fact, conduct such a pat-down.
Instead, they searched the interior of Appellee’s cigarette pack, a location
highly unlikely to contain a weapon in any event.



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J-A18005-16



was erroneous. We note that, “as an appellate court, we may affirm on any

legal basis supported by the certified record.”        Commonwealth v.

Williams, 125 A.3d 425, 433 (Pa. Super. 2015).              Furthermore, “[a]

warrantless search or seizure is presumptively unreasonable under the

Fourth Amendment and Article I, § 8, subject to a few specifically

established, well-delineated exceptions.” Commonwealth v. McCree, 924

A.2d 621, 627 (Pa. 2007).             Even if we were to agree with the

Commonwealth that the suppression court erred in determining that

Appellee was subjected to an investigative detention, the Commonwealth

fails to present any preserved claim that their presumptively unreasonable

search satisfied an exception to the warrant requirement.

      In any event, we would agree with the suppression court that Appellee

was subjected to an investigative detention requiring reasonable suspicion,

that such suspicion was lacking, and that any consent given thereafter was

vitiated by the taint of that illegal detention.

            The legal standard of proof required by a police officer
      when engaging or interacting with a citizen varies depending on
      whether the citizen has been detained, and if so, the degree of
      the detention and the circumstances surrounding the interaction.
      See Commonwealth v. Sands, 887 A.2d 261, 268–69 (Pa.
      Super. 2005) (quoting Commonwealth v. Hill, 874 A.2d 1214,
      1217 (Pa. Super. 2005)). There are three basic levels of
      interaction between citizens and police officers, and the
      accompanying standard of proof needed for each level is firmly
      established:

         The first category, a mere encounter or request for
         information, does not need to be supported by any level of
         suspicion, and does not carry any official compulsion to
         stop or respond. The second category, an investigative

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J-A18005-16


       detention, derives from Terry and its progeny: such a
       detention is lawful if supported by reasonable suspicion
       because, although it subjects a suspect to a stop and a
       period of detention, it does not involve such coercive
       conditions as to constitute the functional equivalent of an
       arrest. The final category, the arrest or custodial
       detention, must be supported by probable cause.

     Id. (quoting Hill, 874 A.2d at 1217); see also Terry v. Ohio,
     392 U.S. 1, 23–26 … (1968). “‘No constitutional provision
     prohibits police officers from approaching a citizen in public to
     make inquiries of them.’ However, ‘if the police action becomes
     too intrusive, a mere encounter may escalate into an
     investigatory [detention] or seizure.’” Commonwealth v.
     Beasley, 761 A.2d 621, 624 (Pa. Super. 2000) (quoting
     Commonwealth v. Boswell, … 721 A.2d 336, 339–40 ([Pa.]
     1998) (plurality)). “The term ‘mere encounter’ refers to certain
     non-coercive interactions with the police that do not rise to the
     level of a seizure of the person under the fourth amendment.”
     Commonwealth v. Peters, … 642 A.2d 1126, 1129 ([Pa.
     Super.] 1994) (quoting Commonwealth v. Bennett, … 604
     A.2d 276, 280 ([Pa. Super.] 1992)). For example, a mere
     encounter transpires when an officer approaches a citizen on a
     public street for the purpose of making inquiries. Id. (quoting
     Bennett, 604 A.2d at 280).

            In contrast, “[a]n investigative detention occurs when a
     police officer temporarily detains an individual by means of
     physical force or a show of authority for investigative purposes.”
     Commonwealth v. Smith, 904 A.2d 30, 35 (Pa. Super. 2006)
     (quoting Commonwealth v. Barber, 889 A.2d 587, 592 (Pa.
     Super. 2005)). In other words, in view of all the circumstances,
     if a reasonable person would have believed that he was not free
     to leave, then the interaction constitutes an investigatory
     detention.      See Peters, 642 A.2d at 1129 (quoting
     Commonwealth v. Harper, … 611 A.2d 1211, 1215 ([Pa.
     Super.] 1992)); Hill, 874 A.2d at 1218–19 (quoting
     Commonwealth v. Johonoson, 844 A.2d 556, 562 (Pa. Super.
     2004)). An investigatory detention triggers the constitutional
     protection of the Fourth Amendment to the United States
     Constitution, Article I, Section 8 of the Pennsylvania
     Constitution, and the prerequisites for such a detention as set
     forth in Terry, supra. Smith, 904 A.2d at 35 (quoting Barber,
     889 A.2d at 592).


                                   -9-
J-A18005-16



Commonwealth v. Cauley, 10 A.3d 321, 325–26 (Pa. Super. 2010)

(footnote omitted).

      The Commonwealth argues that the suppression court erred because it

improperly considered the “subjective intent of the investigating officer[s].”

Commonwealth’s Brief, at 19.         However, the subjective intent of the

detectives at issue – that they intended to investigate Appellee for a

suspected drug deal – was, in fact, verbally conveyed to Appellee during the

course of the stop. See SCO at 9 (“Detective Minnick testified that he told

[Appellee] why they asked to speak with him.”). It was not, therefore, truly

subjective within the meaning of that term as used in the case law. As the

Supreme Court of the United States has opined when discussing the import

of the subjective intent of an officer regarding whether, under the totality of

the circumstances, an individual is ‘in custody’ for purposes of Miranda v.

Arizona, 384 U.S. 436 (1966):

      It is well settled, then, that a police officer's subjective view that
      the individual under questioning is a suspect, if undisclosed,
      does not bear upon the question whether the individual is in
      custody for purposes of Miranda. The same principle obtains if
      an officer's undisclosed assessment is that the person being
      questioned is not a suspect. In either instance, one cannot
      expect the person under interrogation to probe the officer's
      innermost thoughts. Save as they are communicated or
      otherwise manifested to the person being questioned, an
      officer's evolving but unarticulated suspicions do not affect the
      objective circumstances of an interrogation or interview, and
      thus cannot affect the Miranda custody inquiry.

                                        …




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J-A18005-16


        An officer's knowledge or beliefs may bear upon the
        custody issue if they are conveyed, by word or deed, to
        the individual being questioned.

Stansbury v. California, 511 U.S. 318, 324–25 (1994) (internal citation

omitted, emphasis added).

        Similarly, here, while the objective test for whether Appellee was

subjected to an investigative detention is not informed by the subjective

beliefs of the detectives, those beliefs were known to Appellee at the time of

the stop, which rationally informed whether a reasonable person in

Appellee’s situation would feel free to leave. Coupled with the duration of

the stop (5-10 minutes), and the detectives’ numerical advantage (2-1),

their request for Appellee’s ID, and the request to search his person, the

suppression court acted within its discretion in weighing the totality of the

circumstances so as to conclude that Appellee was subjected to an

investigative detention, and not a mere encounter.4                      As the term

‘investigative    detention’    implies,       the   detectives   temporarily   detained

Appellee in order to further investigate whether he was involved in a drug

deal.    Thus, even if waiver did not apply and we were to reach the

Commonwealth’s primary argument, we would conclude that it lacks merit.

        Regarding whether the detectives possessed reasonable suspicion to

conduct this stop, the suppression court stated as follows:
____________________________________________


4
  Due to other factors (no physical restraints applied, no forced movement,
no weapons drawn), we also agree with the conclusion that Appellee was not
subjected to the functional equivalent of a formal arrest.



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        A police officer may detain an individual in order to
        conduct an investigation if that officer reasonably suspects
        that the individual is engaging in criminal conduct. This
        standard, less stringent than probable cause, is commonly
        known as reasonable suspicion. In order to determine
        whether the police officer had reasonable suspicion, the
        totality of the circumstances must be considered.          In
        making this determination, we must give due weight to the
        specific reasonable inferences the police officer is entitled
        to draw from the facts in light of his experience. Also, the
        totality of the circumstances test does not limit our inquiry
        to an examination of only those facts that clearly indicate
        criminal conduct. Rather, even a combination of innocent
        facts, when taken together, may warrant further
        investigation by the police officer.

     Commonwealth v. Kemp, 961 A.2d 1247, 1255 (Pa.Super.
     2008).

            An individual's mere presence in a "high crime area" alone
     is also insufficient to support the existence of reasonable
     suspicion. Illinois v. Wardlow, 528 U.S. 119 (2000); Brown
     v. Texas, 443 U.S. 47 (1979); Commonwealth v. Kearney,
     411 Pa.Super. 274 (1992); In re D.M., 566 Pa. 445 (2001);
     Commonwealth v. Key, 789 A.2d 282 (Pa.Super. 2001). "The
     officer must be able to articulate more than an inchoate and
     unparticularized suspicion or hunch of criminal activity."
     Wardlow, 528 U.S. at 123-24 (citing Terry …) (holding that an
     officer may, consistent with the Fourth Amendment, conduct a
     brief, investigatory stop when the officer has a reasonable,
     articulable suspicion that criminal activity is afoot)). "The Fourth
     Amendment requires at least a minimal level of objective
     justification for making the stop." Wardlow, 528 U.S. at 123
     (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). "The
     determination of reasonable suspicion must be based on
     commonsense judgments and inferences about human
     behavior." Wardlow, 528 U.S. at 125 (citing United States v.
     Cortez, 449 U.S.411, 418 (1981)).

          "Any curtailment of a person's liberty by the police must
     be supported at least by a reasonable and articulable suspicion
     that the person seized is engaged in criminal activity."
     Commonwealth v. Lewis, 535 Pa. 501, 508 (1994) (quoting
     Reid v. Georgia, 448 U.S. 438, 440 (1980)). "A court must
     examine all surrounding circumstances evidencing a show of

                                    - 12 -
J-A18005-16


     authority or exercise of force, including the demeanor of the
     police officer, the manner of expression used by the officer in
     addressing the citizen, and the content of the interrogatories and
     statements." Commonwealth v. Mendenhall, 552 Pa. at 488
     (citations omitted).

           In the case before this Court, [the d]etectives observed
     [Appellee] get into a car for thirty (30) seconds in a high crime
     area, on a well-traveled street. The [d]etectives testified that
     their experience on the Drug Task Force had led them to believe
     that [Appellee]'s behavior was consistent with a drug deal. [The
     d]etectives were not able to observe what occurred in the
     vehicle, but the short duration of [Appellee]'s stay within the
     vehicle led [the d]etectives to believe that a drug deal had taken
     place. …

            An investigative detention requires law enforcement to
     have reasonable suspicion that criminal activity is afoot and that
     the individual detained is involved with that criminal activity.
     Reasonable suspicion is more than an unparticularized suspicion
     or hunch and requires that law enforcement be able to articulate
     particular reasons for their suspicion. [The d]etectives testified
     that they stopped [Appellee] because he was in a high crime
     area, he was in a vehicle for a short time, and he was walking on
     the street in the cold. [Appellee] claimed at the Hearing that he
     was in the area to get something to eat. While the Court does
     not believe the explanation [Appellee] gave at the Hearing, there
     are restaurants and other businesses in that area.              An
     individual's mere presence in an area of high crime is insufficient
     to raise reasonable suspicion without more. The Commonwealth
     cannot rely on the experience of the [d]etectives alone, or in
     combination with the high crime area, to suggest that this raised
     a reasonable suspicion for the [d]etectives. The [d]etectives
     must be able to articulate why [Appellee]'s behavior gave them
     reasonable suspicion. They failed to articulate particular reasons
     for their encounter with [Appellee] aside from their experience
     and the area. This Court finds that it was an illegal investigative
     detention because the [the d]etectives lacked reasonable
     suspicion to conduct the detention of [Appellee].

SCO, at 8-10.

     We would agree.     Appellee was observed, in broad daylight, getting

into a car and then exiting that vehicle shortly thereafter, in a busy, well-

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J-A18005-16



travelled area. Police did not observe anything that occurred in that vehicle.

The fact that this occurred in a high crime area does not render otherwise

innocuous facts into evidence of criminal activity.    There are a hundred

innocent reasons why Appellee could have briefly entered and exited the

vehicle, none of which were dispelled by the detectives’ experience, their

observation of Appellee pacing back and forth afterwards, or any other

circumstances present in this case. The detectives’ assumption that criminal

activity occurred in the vehicle was no more than a hunch.                 See

Commonwealth v. Donaldson, 786 A.2d 279, 281 (Pa. Super. 2001)

(“While the term ‘reasonable suspicion’ is undoubtedly open to some degree

of interpretation, it would seem clear that it was meant to convey a level of

suspicion that goes beyond an ‘educated hunch.’”); id. at 282 (“While

certain activity may seem generally suspicious or ‘fishy,’ it does not

necessarily equate to ‘reasonable suspicion’ for purposes of search and

seizure law.”). The suppression court did not, therefore, err in concluding

that the officers lacked reasonable suspicion to conduct an investigatory

detention.

      Finally, because we would conclude that Appellee was illegally

detained, any subsequent consent given was tainted by that illegal stop.

      When a consensual search is preceded by an illegal detention,
      “the government must prove not only the voluntariness of the
      consent under the totality of the circumstances, but ... must also
      establish a break in the causal connection between the illegality
      and the evidence thereby obtained.”          United States v.
      Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994). See
      also United States v. Jerez, 108 F.3d 684 (7th Cir. 1997). In

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J-A18005-16


     determining whether the consent has been vitiated by the taint
     of the preceding illegal detention, the reviewing court must
     consider: “‘(1) the temporal proximity of the illegal detention
     [and the defendants' consent]; (2) the presence of intervening
     factors between the two events; and (3) the circumstances
     surrounding, and the nature of, the official misconduct.’ United
     States v. Sanchez-Jaramillo, 637 F.2d 1094, 1099 (7th Cir.)
     (citing Brown v. Illinois, [422 U.S. 590, 603-04, 95 S.Ct.
     2254, 45 L.Ed.2d 416 (1975)]), cert. denied, 449 U.S. 862, 101
     S.Ct. 166, 66 L.Ed.2d 79 (1980).” Jerez, 108 F.3d at 695. See
     also United States v. Chavez-Villarreal, 3 F.3d 124, 127-28
     (5th Cir. 1993); United States v. Campbell, 920 F.2d 793, 797
     (11th Cir. 1991); United States v. Delgadillo-Velasquez, 856
     F.2d 1292 (9th Cir. 1988).

Commonwealth v. Sierra, 723 A.2d 644, 647–48 (Pa. 1999).

     Here, the Commonwealth argues that “[t]here is absolutely no

evidence to show that [Appellee]’s consent was the product of anything

other than his own free will.”      Commonwealth’s Brief, at 26.          The

Commonwealth, however, misunderstands the applicable standard. Once it

is established that the preceding stop was illegal, it is the Commonwealth’s

burden to demonstrate the voluntariness of Appellee’s consent, not

Appellee’s burden to demonstrate that his consent was involuntary. Sierra,

supra.

     Moreover,   the   Commonwealth     offers   no   evidence   or   argument

regarding the temporal relationship between the stop and the consent, nor

any evidence or argument regarding the presence of intervening factors.

See id.       Instead, the Commonwealth seeks to rely entirely on the

Appellee’s prior experience in the criminal justice system and the fact that

he is a “fully functional adult,” whatever that means. We find this argument



                                   - 15 -
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to be woefully inadequate to establish “a break in the causal connection

between the illegality and the evidence thereby obtained.” Id. Accordingly,

we would conclude that the Commonwealth failed to prove that the

suppression court erred in determining that any consent given by Appellee

was tainted by the illegal stop.

      In summary, we conclude that the Commonwealth is not entitled to

relief because it waived any claims regarding whether Appellee consented to

the search which yielded the seized contraband, and we would affirm the

suppression order on that basis. Nevertheless, even if we were to reach the

Commonwealth’s arguments, we would conclude that the suppression court

did not err in finding that Appellee was illegally detained without reasonable

suspicion, and that, even if he gave his consent to search his body, that

consent was vitiated by the taint of the immediately preceding illegal stop.

      Suppression order affirmed.

      President Judge Emeritus Ford Elliott joins this memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2016




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