J-A02030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

OSCAR ALBERTO VEGA ALVARADO

                                                    No. 1692 EDA 2015


                  Appeal from the Order entered May 7, 2015,
                in the Court of Common Pleas of Bucks County,
             Criminal Division, at No(s): CP-09-CR-0000730-2015.


BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY RANSOM, J.:                           FILED APRIL 28, 2017

       The Commonwealth appeals from the order entered May 7, 2015,

granting Appellee’s suppression motion.1 We affirm.

       In November 2014, Appellee was arrested, and subsequently charged

with driving under the influence pursuant to 75 Pa.C.S. §§ 3802(a)(1) and

3802(c).     On March 31, 2015, Appellee filed a pretrial motion, which

included a challenge to the admissibility of statements he made during a

traffic stop.      Specifically, Appellee contested the admissibility of his

____________________________________________


1
  The Commonwealth has certified that the trial court’s suppression order
will terminate and/or substantially handicap the prosecution of Appellant’s
case. See Pa.R.A.P. 311(d).




*Former Justice specially assigned to the Superior Court.
J-A02030-17



statements made during a second interaction between him and the arresting

officers on the basis that the statements were the product of a custodial

interrogation made without Miranda warnings.2 Appellee also contested the

admissibility of blood alcohol results on the basis that, without the

statements he made at the scene, the Commonwealth was unable to

establish the time of driving.

        The trial court held a suppression hearing on May 7, 2015. Trooper

Craig Acord was the only witness.              In addition, the Commonwealth played

the trooper’s dash cam recording of the incident. The trial court summarized

its factual findings as follows:

             On November 21, 2014, at approximately 11:40 p.m.,
          State Trooper [Craig] Acord (“Trooper Acord”), while on
          patrol and in full uniform, in a marked patrol vehicle,
          observed a disabled vehicle stopped on Interstate 95. The
          disabled vehicle, a black Mercedes owned by [Appellee],
          was stopped on the right shoulder on Interstate 95 and
          had its hazard lights on. Upon seeing the disabled vehicle,
          Trooper Acord turned on his overhead lights and stopped
          behind the vehicle. It is Trooper Acord’s practice to stop
          and offer assistance to disabled vehicles.

             When Trooper Acord initially parked his patrol car
          behind [Appellee’s], he saw [Appellee] in the process of
          changing a tire. Trooper Acord then got out of his patrol
          car, approached [Appellee] (“the first interaction”), and
          asked him questions assessing the situation and offering
          aid. Trooper Acord’s first two questions to [Appellee]
          were: “[Y]ou got a flat? You ok?” Trooper Acord then
          asked [Appellee] where he was coming from and where he
____________________________________________


2
    Arizona v. Miranda, 384 U.S. 436 (1966).




                                           -2-
J-A02030-17


       was going. Trooper Acord was very amicable during the
       first interaction. Prior to going back to his patrol vehicle,
       Trooper Acord told [Appellee] to “go ahead and do what
       you gotta do there” and to “have at it my friend.”
       Pursuant to normal practice, Trooper Acord asked for
       [Appellee’s] information and took his driver’s license while
       his partner got the registration from [Appellee’s] vehicle.

           It is undisputed and uncontested that the first
       interaction between [Appellee] and Trooper Acord was a
       mere encounter. However, during the first interaction,
       Trooper Acord observed that [Appellee] appeared to be
       unsteady, slurred his speech, and had an odor of alcohol
       coming from him. These observations indicated to Trooper
       Acord, who has made roughly 350 DUI arrests, that
       [Appellee] was intoxicated (“hammered”). When Trooper
       Acord returned to his patrol car to run [Appellee’s] driver’s
       license and registration number, he notified his partner
       that [Appellee] was a “drunk driver” and that he was
       “hammered.” Trooper Acord uses the term “hammered”
       when describing somebody who is “more than a little
       drunk.” Trooper Acord then said to his partner that he was
       not going to let [Appellee] change his tire because he
       might hurt himself.       At that time, Trooper Acord
       determined that [Appellee] was detained and no longer
       free to leave.

          Trooper Acord then exited his patrol car and re-
       approached [Appellee’s] vehicle a second time (“the
       second interaction”). When Trooper Acord approached
       [Appellee] for their second interaction, [Appellee] was
       kneeling down and changing the front right tire of his
       vehicle. When Trooper Acord reached [Appellee’s] vehicle,
       he stated, “[Appellee], I want you to step over here and
       talk to me real quick.” [Appellee] complied as ordered,
       and walked to the back right of his vehicle. [Appellee]
       then stood between the two State Troopers and the
       concrete barrier lining the shoulder of the highway.

          Trooper Acord then proceeded to ask [Appellee] various
       questions which he already asked him during the first
       interaction. These questions called into doubt the answers
       [Appellee] initially provided. For example, one of the first
       questions Trooper Acord asked [Appellee] during the
       second interaction was “[w]here are you coming from?’

                                   -3-
J-A02030-17


       This same question was asked during the first interaction.
       However, it was now asked in an inquisitive tone of voice
       to communicate to [Appellee] that Trooper Acord severely
       doubted the answer [Appellee] had previously given. The
       same can be said for the way in which Trooper Acord re-
       asked [Appellee] “[h]ow come you’re heading this way if
       you’re heading home?

          Trooper Acord then ordered [Appellee] to move, for a
       second time, between the patrol car and [Appellee’s] car.
       Moments after commanding [Appellee] to step away from
       his front right tire, and asking various questions, Trooper
       Acord demanded [Appellee] “[s]tand over here and talk to
       me a bit more.” This time, Trooper Acord made [Appellee]
       stand directly between the patrol car and [Appellee’s] car.
       In doing so, Trooper Acord directed [Appellee] to “stand on
       that line for me and face me.” Trooper Acord then asked
       [Appellee] “you don’t have any weapon do you?” As
       Trooper Acord asked this question, he began to look into
       [Appellee’s] pockets, asked what he was carrying and
       performed a brief pat down.

          Trooper Acord then asked [Appellee] when his last drink
       was. [Appellee] responded that his last drink was twenty
       minutes prior to seeing Trooper Acord. Trooper Acord then
       asked [Appellee] if he stopped after work and where he
       stopped.    [Appellee] answered in the affirmative and
       stated that he stopped at a bar called “The Press.”

          Trooper Acord then proceeded to administer a field
       sobriety test known as the horizontal gaze nystagmus.
       The test was administered to confirm that [Appellee] was
       intoxicated. The horizontal gaze nystagmus test did in fact
       indicate that [Appellee] was intoxicated. Next, Trooper
       Acord had [Appellee] take a portable breath test. The
       portable breath test measured [Appellee’s] blood alcohol
       level at .19, more than double the legal limit. Trooper
       Acord then handcuffed [Appellee] and placed him in the
       back of his patrol car.

          Trooper Acord testified at the suppression hearing that
       his plan in re-approaching [Appellee] was to build his case
       for impairment. Trooper Acord hoped to do so by getting
       [Appellee] to talk more so that he could get [Appellee’s]
       slurred speech on his audio recorder. However, Trooper


                                  -4-
J-A02030-17


         Acord did not provide [Appellee] with his Miranda
         warnings. Further, at no point did Trooper Acord or his
         partner return [Appellee’s] driver’s license to him.

            Earlier in the evening, another State Trooper, Trooper
         Hand, observed [Appellee] pull over to the side of the
         highway. No estimate of time between [Trooper] Hand’s
         observation and when Trooper Acord arrived on the scene
         was given. [Appellee] was not in the driver’s seat and the
         engine was not running. Trooper Acord did not touch any
         portion of the vehicle to indicate whether or not it was
         warm. At approximately 12:30 a.m. blood was drawn at
         St. Mary’s Hospital.

Trial Court Opinion, 10/7/15, at 1-5 (footnotes omitted).

      After hearing argument from the parties, the trial court granted

Appellee motion, thereby suppressing statements made during the second

interaction, and, because the Commonwealth proof of the time Appellee was

driving was dependent on one of these statements, it also ruled the blood

alcohol results inadmissible as it relates to the Section 3802(c) charge. This

timely appeal by the Commonwealth follows. Both the Commonwealth and

the trial court have complied with Pa.R.A.P. 1925.

      The Commonwealth raises the following issues:

         A. Did [Trooper Acord] have reasonable suspicion to
            believe that Appellee, who exhibited slurred speech and
            red, glassy eyes, smelled of alcohol, was unsteady on
            his feet, and had trouble responding to the [trooper’s]
            questions, had been operating his vehicle while under
            the influence of alcohol, such that an investigative
            detention of Appellee was lawful for purposing [sic] of
            further investigation [of] the suspected criminal
            activity?

         B. Did the suppression court err in concluding that
            Appellee had been subject to custodial interrogation
            which required Miranda warnings where the [trooper]

                                    -5-
J-A02030-17


           testified that he formed the opinion during the traffic
           stop that Appellee was intoxicated and therefore not
           free to leave but where the [trooper] never
           communicated that to Appellee, and where, under an
           objective standard, the totality of the circumstances did
           not reasonably suggest to Appellee that he was under
           arrest or the [functional] equivalent thereof at the time
           he made statement(s) that were the subject of
           suppression?

        C. Did the suppression court err in suppressing the
           laboratory results concerning Appellee’s blood alcohol
           content based on a violation of the two-hour rule where
           it held that there was circumstantial evidence that
           Appellee had been driving within two hours of his blood
           being drawn based on Appellee’s statements in
           conjunction with other circumstantial evidence, but that
           Appellee’s statement was inadmissible and therefore the
           blood results were inadmissible?

        D. Did the suppression court err in suppressing the
           laboratory results concerning Appellee’s blood alcohol
           content based on a violation of the two-hour rule where
           the blood alcohol results were otherwise admissible as
           evidence on count one of the information, 75 Pa.C.S. §
           3802(a)(1), irrespective of whether Appellee’s blood
           was drawn within two hours of him operating a vehicle?

Commonwealth’s Brief at 4-5 (excess capitalization omitted).

     This Court has summarized:

           The applicable standard of review in a Commonwealth
        appeal from an order of suppression is well-settled. We
        must first determine whether the factual findings are
        supported by the record, and then determine whether the
        inferences and legal conclusions drawn from those findings
        are reasonable. We may consider only the evidence from
        the defendant’s witnesses together with the evidence of
        the prosecution that, when read in the context of the
        entire record, remains uncontradicted. When the evidence
        supports the suppression court’s findings of fact, this Court
        may reverse only when the legal conclusions drawn from
        those facts are erroneous.


                                    -6-
J-A02030-17



Commonwealth v. Lyles, 54 A.3d 76 (Pa. Super. 2012) (citations

omitted), affirmed, 97 A.3d 298 (Pa. 2014).

      After careful review of the suppression hearing transcript, as well as

our viewing of the dash cam video, we conclude that the Honorable Robert J.

Mellon has prepared a thorough and well-reasoned opinion that discusses

the different types of police interaction with persons subject to a traffic stop

and correctly applies the requisite quantum of evidence the police must

possess in order to validate their conduct. Applying the applicable criteria to

his factual findings, we conclude that Judge Mellon has correctly disposed of

the Commonwealth’s first three claims. We therefore adopt Judge Mellon’s

October 7, 2015 opinion as our own in disposing of the Commonwealth’s first

three issues enumerated above.

      In reaching our conclusion, we reiterate that standards applicable to

police conduct may change during the relatively short duration of a traffic

stop. See Commonwealth v. Cauley, 10 A.3d 321, 326 (Pa. Super. 2010)

(explaining that “[b]ecause the level of intrusion may change during the

course of the police encounter, the record must be carefully scrutinized for

any evidence of such changes”).     Given the particular facts presented, we

emphasize the following rationale provided by Judge Mellon:

            The foregoing facts clearly indicate that no further
         investigation was necessary to convince Trooper Acord,
         who has made roughly 350 DUI arrests, that [Appellee]
         was intoxicated and an arrest was going to be made. For
         instance, Trooper Acord’s use of the word “hammered,”
         and his corresponding description of the term, showed that

                                     -7-
J-A02030-17


         there was no doubt in his mind that [Appellee] was
         intoxicated. Trooper Acord testified at the suppression
         hearing that his plan in re-approaching [Appellee] was to
         build his case for impairment. His only efforts in doing so
         were to ask incriminating questions and subject [Appellee]
         to an interrogation. These circumstances do not fit the
         purpose of the investigative detention because once the
         determination to arrest was made, [Appellee] was in
         custody and entitled to his Miranda warnings prior to
         being interrogated.

Trial Court Opinion, 10/7/15, at 24 (footnote omitted).           See, e.g.,

Commonwealth v. Turner, 772 A.2d 970, 975 (Pa. Super. 1999) (en banc)

(holding that if a motorist who has been detained pursuant to a traffic stop

thereafter is subject to treatment that renders him in custody for practical

purposes, he or she is entitled to full panoply of protections prescribed by

Miranda).

      In addressing the Commonwealth’s fourth issue, we note that Judge

Mellon explicitly suppressed the blood alcohol results only as to the Section

3802(c) charge. See Trial Court Opinion, 10/7/15, at 26.

      In sum, because a review of the totality of the circumstances supports

the conclusion that Appellee was subject to custodial interrogation during the

traffic stop without the benefit of Miranda warnings, we affirm the order

granting Appellee’s suppression motion.

      Order affirmed.




                                    -8-
J-A02030-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2017




                          -9-
                                                                                                                               Circulated 04/06/2017 10:47 AM




        IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY,                                                             PENNSYLVANIA
                               CIVIL ACTION

    COMMONWEALTH             OF PENNSYLVANIA               :

                   vs.
                                                                   CP-09-CR-000730-2015
    OSCAR VEGA ALVARADO



                                                       OPINION

           The Commonwealth         of Pennsylvania      (the "Commonwealth")                        appeals from the decision of

    this Court's Order entered on May 7, 2015, granting Oscar Vega Alvarado's                                         ("Alvarado"      or "Mr.

    Vega") Motion to Suppress statements           he made after he was subject to a custodial interrogation

    but not provided with his Miranda warnings. It is uncontested that the initial interaction between

    Trooper Acord and Alvarado was a "mere encounter." However, the primary issue before this

    Court is whether the second interaction between Trooper Acord and Alvarado was a custodial

interrogation which required Miranda warnings.

                            FACTUAL AND PROCEDURAL BACKGROUND

           On, November 21, 2014 at approximately 11 :40 p.m., State Trooper Craig Acord ("Trooper

Acord"), while on patrol and in full uniform, in a marked patrol vehicle, observed a disabled

vehicle stopped on Interstate 95.1 The disabled vehicle, a black Mercedes owned by Alvarado, was

stopped on the right shoulder on Interstate 95 and had its hazard lights on.2 Upon seeing the

disabled vehicle, Trooper Acord turned on his overhead lights and stopped behind the vehicle.' It

is Trooper Acord's practice to stop and offer assistance to disabled ve~ic~t:~~\:~;·);_\8
                                                                                                     ...           ·.·,·,;1,,.H:-i:l
                                                                                    ~· • ·               1 ;     ;v·, v ~.; :.i·l~
                                                                                                    (~J        . :j:!3fi
                                                                                                4

                                                                                    ._   ••




I                                                                           •   T        ,,-·        ,
  Notes of Testimony (hereinafter "N.T.") 517/15, I 5:l-3.                   . I .         ,
2                                                                          '';'. ' ..............
  N.T. 511/IS, 21-23.
1
  N.T. 511115, 16:6-13.
4
  N.T.5n11s;21-23. Trooper Acord testified at the suppression hearing that it is normal practice for Trooper Acord
and other State Troopers to offer aid to drivers of disabled vehicles. Trooper Acord testified that if the driver of the
          When Trooper Acord initially parked his patrol car behind Alvarado's, he saw Alvarado in

 the process of changing a tire.5 Trooper Acord then got out of his patrol car, approached Alvarado

 C'lhe first interaction"), and asked him questions assessing the situation and offering aid.6 Trooper

 Acord's first two questions to Alvarado were: "[y]ou got a flat? You ok?"7 Trooper Acord then

asked Alvarado where he was coming from and where he was going.8 trooper Acord was very

amicable during the first interaction: Prior to going back to his patrol vehicle, Trooper Acord told

Alvarado to "go ahead and do what you gotta do there" and to "have at it my friend,"? Pursuant to

normal practice, Trooper Acord asked for Alvarado's information and took his driver's license

while his partner got the registration from Alvarado's vehicle.!?

         It is undisputed and uncontested that that the first interaction between Alvarado and

Trooper Acord was a mere encounter. However, during the first .interactlon, Trooper Acord

observed that Alvarado appeared to be unsteady, slurred his speech, and had an odor of alcohol

corning from him. 11 These observations indicated to Trooper Acord, who has made roughly 350

DUI arrests, that Alvarado was intoxicated (''hammered").12 When Trooper Acord returned to his

patrol car to run Alvarado's driver's license and registration number, he notified his partner that

Alvarado was a "drunk driver"!' and that he was "hammered,"!" Trooper Acord uses the term

"hammered" when describing somebody who is "more than a little drwik.''15 Trooper Acord then



disabled vehicle does need assistance, the State Trooper will call a tow truck, otherwise the Trooper will set up
flares behind the driver's vehicle to protect them from traffic.
5
   N.T. snn 5, 16:22-25.
6 Video.
7 Video.

• Video.
9Video.
10N.T.
         517115, 17-18.
11
   N.T. 511115, 18:10·17.
12
   N.T. 511115, 18~!9.
11
   Video.
1• N.T. S/7/1 S, 20: 1-10.
15
   N.T. 51111 .5, 30:7-9.

                                                          2
 said to his partner that he was not going to let Alvarado change his tire because he might hurt

 himself.16 At that time, Trooper Acord determined that Alvarado was detained and no longer free

 to leave.'?

            Trooper Acord then exited his patrol car and re-approached Alvarado's vehicle a second

 time (''the second interaction").18 When Trooper Acord approached Alvarado fot their second

 interaction, Alvarado was kneeling down and changing the front right tire of his vehicle.19 When

 Trooper Acord reached Alvarado's vehicle, he stated, "Mr. Vega, I want you to step over here and

 talk to me real quick."20 Alvarado complied as ordered, and walked to the back right of his

 vehicle.21 Alvarado then stood between the two State Troopers and the concrete barrier lining the

shoulder of the highway .22

            Trooper Acord then proceeded to ask Alvarado various questions which he already asked
                                    23
him during the first interaction.        These questions called into doubt the answers Alvarado initially

provided. For example, one of the first questions Trooper Acord asked Alvarado during the second

interaction was "[ w]here are you coming from?"24 This same question was asked during the first

interaction.25 However, it was now asked in an inquisitive tone of voice to communicate to

Alvarado that Trooper Acord severely doubted the answer Alvarado had previously given.26 The




16 N.T. 517115, 20: 14-18.
17
   N.T. 517115, 32:4-14.
 11N.T.
        5/7115, 20:18-19.
19
   Video.
zo Video.
21
   Video
22 Video.
23Video.
1'
   Video.
uvideo.
26 Video.


                                                       3
 same can be said for the way in which Trooper Acord re-asked Alvarado "[h]ow come you 're

 heading this way if you 're heading homer27

         trooper Acord then ordered Alvarado to move, for a second time, between the patrol car

 and Alvarado's car.28 Moments after commanding Alvarado to step away from his front right tire,

 and asking Alvarado various questions, trooper Acord demanded Alvarado ''[sJtand over here and

 talk to me a Jittle bitniore."29 This time, Trooper Acord made Alvarado stand directly between the

patrol car and Alvarado's car.30 In doing so, Trooper Acord directed Alvarado to "stand on that

line for me and face me."31 Trooper Acord then asked Alvarado "you don't have any weapon do

you?' As Trooper Acord asked this question, he began to look into Alvarado's pockets, asked what

he was carrying, and performed a brief pat· down. 32

        Trooper Acord then asked Alvarado when his last drink was.33 Alvarado responded that his

last drink was twenty minutes prior to seeing trooper Acord. 34 Trooper Acord then asked Alvarado

ifhe stopped after work and where he stopped.35 Alvarado answered in the affirmative and stated

that he stopped at a bar called "The Press."36

        TrooperAcord then proceeded to administer a field sobriety test known as the horizontal

gaze nystagmus.37 The test was administered to confirm that Alvarado was mtoxicated." The



27
   Video. The patrol video in this case indicates that Alvarado told Trooper Acord he was going home. However,
after viewingAlvarado's address on his driver's license, Trooper Acord questioned Alvarado why he was stopped at
a certain point on the highway if he lived at the address listed on his driver's license? Mainly, Trooper Acord
believed that Alvarado missed his exit, and questioned him to that effect.
21Video.
29 Video.
10Video.
31
   Video.
J2 Video.
33
   N.T. 511115, 23-24.
:u N.T. 5/7115, 24:1~3.
H N.t. SntlS,34-35.
u N.T. 517115, 24: 7-10.
j7N.T. S/7/15, 21-22.
31N.T.
        517115, 21~22.

                                                       4
 horizontal gaze nystagmus test did in fact indicate that Alvarado was intoxicated.P'Next,   Trooper

 Acord had Alvarado take a portable breath test.40 The portable breath test measured Alvarado's         I
 blood alcohol level at .19, more than double the legal limit." Trooper Acord then handcuffed

 Alvarado and placed him in the back of his patrol car.42

          Trooper Acord testified at the suppression hearing that his plan in re-approaching Alvarado

 was to build his case for impairrnent.43 Trooper Acord hoped to do so by getting Alvarado to talk
 more so that he could get Alvarado's slurred speech on his audio recorder.f However, Trooper

 Acord did not provide Alvarado with his Miranda wamings.45 Further, at no point did Trooper

 Acord or his partner return Alvarado's driver's license to him.46

          Earlier in the evening another State Trooper, Trooper Hand, observed Alvarado pull over

to the side of the highway.47 No estimate of the time between Tooper Hand's observation and when

Trooper Acord arrived on the scene was given. Alvarado was not in the driver's seat and the engine

was not running. 48 Trooper Acord did not touch any portion of the vehicle to indicate whether or

not it was warm.49 At approximately 12:30 a.m. blood was drawn atSt. Mary's Hospital."

         Alvarado is charged on Criminal Information No. 730-2015 with Driving Under the

Influence, 75 Pa. C.S. §3802(a)(I) & (c).




'' N.T. snns, 22~23.
40
   N.T. snn 5, 23:6~9.
41
   N.T. snns, 23:6-9.
42 Video.    .
43 N.T. 517/15, 20-21.

"Id.
41
   N.T. 517115, 52:1-6.
46
   Video.
47
   N,T. 5/7/15, 44-48.
'1 N.T. snns, 49:19-21.
49
   N.T. 5/7/15, 49:21-25.
'°N.T. 517/15, 27:12-19.

                                                  5
           On March 31, 20 J 5, Alvarado filed a pretrial motion, which included his challenge to the

 admissibility of his statements made at the scene of the traffic stop. Specifically, Alvarado

 contested the admissibility of his statements made during the second interaction on the basis that

 they were a product of a custodial interrogation and made without Mimnda warnings. Alvarado

 similarly contested the admissibility of the Blood Alcohol Results on the basis that without the

 statements Alvarado made on scene, the Commonwealth was unable to establish the time of

driving.

         During a suppression hearing on May 7, 2015, the Court Granted Alvarado's Motion to

Suppress and suppressed statements made at the scene of the vehicle stop and therefore ruled that

the Blood Alcohol Results were also inadmissible."

         On June 5, 2015, the Commonwealth filed a Notice of Appeal with the Superior Court.

This Opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure l 925(a).52

                     StATEMENT OF MATTERS COMPLAINED OF ON APPEAL

         Pursuant to Pennsylvania Rule of Appellate Procedure ! 925(b), the Commonwealth filed

a Statement of Errors Complained of on Appeal on June 30, 2015.                               In its appeal, the

Commonwealth complained of four errors. This Court consolidates these four complained of errors

into following two issues:

         I. Was Alvarado deprived of his Constitutional rights when Trooper Acord did not

             provide him Miranda warnings before· or during the second time Trooper Acord

             approached Alvarado and his vehicle such that any statement made by Alvarado during

             this second interaction should be suppressed?



'1 N.T. 517115, 73-75.
11
  "Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues which the panics plan to
raise on appeal. Rule 1925 is thus a crucial component of the appellate process." Com. v. Seibert, 799 A.2d 54, 62
(Pa. Super. 2002).

                                                          6
 ·l



l
:.i

 II
.:J            2. If Alvarado's Constitutional rights were violated because Trooper Acord failed to

                   provide him Miranda warnings before or during their second interaction, should the

                   blood alcohol results, taken at Saint Mary's Hospital, be suppressed as a product of an

                   unJawful detainment, violation of Miranda warnings, and in violation of the two hour

                   rule?

                                                      DISCUSSION

              · This Court will discuss the aforementioned issues in       tum.   As previously stated, it is

      uncontested and undisputed that the first interaction between Alvarado and Trooper Acord was a

      mere encounter. Therefore, this Court needs only to analyze whether Alvarado's Constitutional

      rights were violated during the second interaction.·.

               The first Section of this Opinion will begin by discussing the three types of interactions

      between law enforcement and citizens and the corresponding legal standards. This Opinion will

      then illustrate why the second interaction rose to the level of a custodial interrogation.

      Accordingly, this Opinion will show that Alvarado was entitledto        his Miranda   warnings during

      the second interaction. Because Alvarado was not given his Miranda warnings, any statement made

      during the second encounter will be suppressed.

               In the second Section, th.is Opinion will discuss why the blood alcohol results taken at Saint

      Mary's Hospital were the product of a violation-of Alvarado's Constitutional rights. Consequently,

      the Blood Alcohol Results should also be suppressed.

         I.       Trooper Acord's · Second. Interaction with Alvarado Constituted a Custodial
                  Interrogation Such That Alvarado Should Have Been Given Mitanda Warnings
                  and, Because Of Trooper Acord's Failure To Provide Such Warnings, Alavarado,s
                  Statements During the Second Interaction Are Suppressed.

              The Fourth Amendmentof the United States Constitution provides that it is "[tjhe right of

      the people to be secure in their persons, houses, papers, and effects, against unreasonable searches


                                                         7.
 and seizures ... "53 Similarly, the Pennsylvania Constitution guarantees that the people of'the

 Commonwealth "shall be secure in their persons, houses, papers and possessions from

 unreasonable searches and seizures ... "54 "The Fourth Amendment protects against unreasonable.

 searches and seizures, including those entailing only a brief detention. "55 Courts have divided

 interactions between law enforcement and citizens into three categories. These categories provide

 varying. levels of justification depending upon the nature of the interaction and whether
                                                                                      .
                                                                                           or not the

 citizen is detained.56

                  The first of these is a "mere encounter" (or request for information)
                  which need not be supported by any level of suspicion, but carries
                  no official compulsion to stop or to respond. The second, an
                  "investigative detention" must be supported by a reasonable
                  suspicion; it subjects a suspect to a stop and a period of detention,
                  but does not involve such coercive conditions as to constitute the
                  functional equivalent ofan arrest. Finally, an arrest or "custodial
                  detenrfen" must be supported by probable cause."

However, the type of encounter can change during the course of the·interaction. 58

         A. Mere Encounter


         A law enforcement agent may engage in a mere encounter without any suspicion of

criminal activity, and the citizen has no obligation to stop or respond.59 "A mere encounter is

characterized by limited police presence and police conduct and questions that are not suggestive

of coercion. It is only when such police presence becomes too intrusive, the interaction must be




'1 U.S. Const. amend IV.
54
   Pa. Const. an. I,§ 8.
,, Com, v, Strickler, 757 A.id 884, 887 (Pa. 2000).
~ Com v. DeHart, 145 A.2d 633, 636 (Pa. Super. 2000).
~7 Com. v. Fleet. 114 A.Jd 840, 845 (Pa. Super. 2015).
n Com. v. Blair. 860 A.2d 567, 512 (Pa. Super. 2004)(holding that "[b]ecause the level of intrusion into a person's
liberty may change during the course of the encounter, [courts] must carefully scrutinize the record for any evidence
of such changes.").
"Coin v. Boswell, 721 A.2d 336, 340 (Pa. 1998).

                                                          8
   deemed an investigative detention or seizuce."60 "The hallmark of [a mere encounter] is that it

   carries no official compulsion to stop of respond."61

          Police officers lending aid to citizens has been classified as a mere encounter. "[The

   Superior Court of Pennsylvania] has held that police officers have a duty to render aid and

  assistance to those they believe are in need of help.'>62 For example, in Commonwealth v. Kendall,

  the court ruled that there was just a mere encounter when a police officer pulled off a road, behind

  a vehicle, and wasjust trying to determine whether a motorist needed aid.63

          Similarly, in Commonwealth v. Collins. a State Trooper approached a vehicle parked after

  dark, at a scenic location that was commonly used in daylight, to check on the safety ofthe

 rnotorists.t' The trooper parked twenty feet away from the rear of the vehicle, observed no outward

 sign of distress from the vehicle or its occupants, did not observe anything that would lead him to

 believe illegal activity was occurring, and the occupants of the vehicle were not scrambling around

 as if they were trying to get away because the trooper was approaching.65 However, when the

 trooper approached the vehicle, he smelled marijuana and saw a bong in plain view.66 Thereafter,

an occupant of the vehicle blurted out that the occupants had been smoking marijuana and that he

owned the bong.67     ·


         The defendant was charged with possession of drug paraphernalia and moved to suppress

the drug paraphernalia (i.e. the bong).68 Ultimately, the court denied the defendant's Motion to

Suppress and held that the initial interaction between the State Trooper and the passenger in the


   Com. v. Hill, 874 A.2d 1214, 1220-21 (Pa. Super. 2005Xcitations ominedXemphasis in original).
Ii()
61
   DeHart. 745 A.2d at 636.
62
   Corn v. Kendall. 976 A.2d 503, 505 (Pa. Super. 2009).
63
   Kendall 976 A.2d at SOS.
&4 Com. v. Collins, 950 A.2d 1041, 1044 (Pa. Super. 2008).
65
   Collins, 950 A.2d at 1045-46.
66
   Id.
67
   .l.!!. at 1045.
6i Id.


                                                       9
 vehicle was a mere encounter that did not need to be supported by any level of suspicion.69 The

 court reasoned that the State Trooper did not act in a coercive manner, did not speak forcefully to

 the defendant, and that a reasonable person in the defendant's position would have interpreted the

 trooper's actions "as an act of official assistance and not an investigative detention.';70

         However, as previously stated, the conduct of the law enforcement agent can escalate the

 type of interaction. ''lfthe police action becomes too intrusive, a.mere encounter may escalate into

an investigatory stop or a seizure.'?"

         B. Investigative Detention

         In contrast to a mere encounter, an investigative detention "carries an official compulsion

to stop and respond, hut th« detention is temporary. unless it results in the formation of probable

cause for arrest, and does not possess the coercive conditions consistent with a formal arrest."72

However, because the investigative detention has the elements of official compulsion, it requires

"reasonable suspicion" of unlawful activity." The Pennsylvania Supreme Court enunciated the

test to determine whether individuals interacting with police officers have been subject to                       an
"investigative detention.''74 "The test is whether, considering all the circumstances surrounding the

encounter, the police conduct would communicate to a reasonable person that the person was not

free to decline the officers' requestor otherwise terminate the encounter."75

        The purpose of an investigative detention is to provide law enforcement an opportunity to

conduct further investigation into suspected criminal activity. For example, in Commonwealth                      V;.



69
   Id. at I 04 7-:-48.
70
   Id. at 1047.
71
   Boswell. 721 A.2d 336, 340 (Pa. 1998); see also Blair. 860 A.2d 567, 572 (Pa. Super. 2004)(rtding that "[bjecause
the level of intrusion into a person's liberfy may change during the course of the encounter, we must carefully
scrutinize the record for any evidence of such changes.").
72DeHan, 745 A.2d 633, 636 (Pa. Super. 2000)(emphasis added).
73 Id.
74
   ~m. v. Sierra, 723 A.2d 650 (Pa. 1999).
" DeHart, 745 A.2d 633, 636 (Pa. Super. 2000)(citing film.!!,. 723 A.2d 650 (Pa. 1999)).

                                                         IO
     DeHart. the court analyzed when interactions escalate into an investigative detention.76 The

     applicable facts for DeHart are as follows: two State Troopers, were on patrol in two marked patrol

     vehicles when they received a radio report that there was a "suspicious vehicle" that might be a

 blue Camaro or Trans Am.77 The Troopers then briefly followed a Trans Am that was driving

 slowly. 78 The Trooper later found the Trans Am parked in the front of a house with the engine still

 running.79

           The Troopers pulled their car up next to and on the left hand side of the Trans Am.80 the

 Trooper sitting in the passenger seat then rolled his window down; this prompted the driver of the

 Trans Am to do the same.81 The Trooper then asked the driver of the Trans Am "what's going on

 here?"82 The driver of the Trans Am responded in a soft-spoken manner and avoided eye contact

 with the Trooper." This aroused suspicions for the questioning Trooper who said to his partner,

 "sornething's not right here, ... I'm going to get out of the car and see what's going on here."84

           The Troopers proceeded to exit their patrol car. One Trooper went to speak with the driver

of the Trans Am while the other Trooper spoke with the passenger.85 After conversing with the

driver of the Trans Am, the Trooper smelled alcohol on his breath and believed he might not be

twenty-one years of age.86 The driver provided the Trooper with his driver's license which




76
   DeHart, 745 A.2d 633, 63S (Pa. Super. 2000).
77 Id
71~
79
   Id.
IO Id.
II Id.
IZ Jd.
a; Id.
~ Id.
"l!l
86
     Id.

                                                    11
     confirmed he was under twenty-one years of age. 87 The Trooper then directed the driver out of his

     vehicle.88

            Meanwhile, the other Trooper also detected alcohol on the breath of the passenget.89 The

 Trooper then asked the passenger to exit the vehicle and told he was going to be transported to

 Evangelical Hospitai.90 The Trooperalsoperformed         a pat-down search on the passenger." The

 pat-down yielded a marijuana pipe and a bag of marijuana.92 Both the passenger and the driver of

 the Trans Am were arrested and taken to the hospital for blood alcohol tests.93 Charges were filed

 against both parties and both parties moved to suppress all of the evidence resulting from the police

 encounter. 94

            The court held that the Troopers pulling up to the Trans Am and making cursory inquiries

qualified as a mere encoW1ter.9s The court justified this finding on the fact that the Troopers just

Wanted to find out what was going on.96 However, the court ruled that when the Troopers exited

the vehicle and approached the Trans Arn, they escalated "the encounter to afford greater

investigation, which, of course, is consistent with the purpose of an investigative detention.?"

Accordingly, the court analyzed whether the Troopers had the requisite reasonable suspicion of

criminal activity to support the investigative detention."




17    Id.
II    Id.
19~
'lO   Id.
91~
91    Id.
,1 Id.
94 Id.
95 Id. at 638.
96 Id.
97 Id. (emphasis added).
93 Id. at 637-38.


                                                    12
            C. Custodial Detention and Custodial Interrogation


            The final kind of interaction      is a custodial detention.      "In further contrast, a custodial

 detention occurs when the nature, duration and conditions of an investigative detention become so

 coercive     as   to be, practically speaking, the functional equivalent of an arrest."99 "The key

 distinction between an investigative detention and custodial detention is thatan investigative

 detention lacks the coercive conditions that would make it the functional equivalent of an

 arrest."100 However, the facts and circumstances of each case are generally controlling in

determining whether or not a detention is investigatory or custodial.

           In determining whether or not a person was entitled to Miranda warnings, courts must first

determine if that person was subject to a custodial interrogation.'?' The standard Pennsylvania

courts use in determining whether a person's interaction with law enforcement is "custodial," or

whether law enforcement initiated a "custodial interrogation," is an objective one based on                         a
totality of the circumstances with due consideration given to the reasonable impression conveyed

10    the person interrogated_l02 Custodial interrogation, which ultimately require Miranda warnings,

is defined as "questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom ofaciiori in any significant way ."103 The applicable

test for determining whether a particular situation involves a custodial interrogation is as follows:

                    The test for determining whether a suspect is being subjected
                    to custodial interrogation so as to necessitate Miranda warnings is
                    whether he is physically deprived of his freedom in any significant
                    way or is placed in a situation in which he reasonably believes that



99
    Id. (citations omitted).                     .                                                             .
•00  Walkden v. Com., Dept, ofTransp .• Bureau of Driver Licensing, 103 A.3d 432, 439 (Pa. Cornmw, Ct. 2014).
101
     Coin. v. Johnson S41 A.2d 332, 336 (Pa. Super. 1988)(holding that "[a) person must be informed of his or her
Miranda rights prior to custodial interrogation by police.").
102
     Coni v. Gwynn. 723 A.2d 143, 148 (Pa. 1998).                                   .
io) Johnson, 541 A.2d at 336 (qUoting Miranda v. Arizon~ 384 U.S. 436, 444 (1966)).


                                                         13
                     his freedom        of     action    or     movement     is   restricted   by
                     such interrogation.P'


            Simply put, determining whether a situation is a "custodial interrogation"          is a two-part

 test First, the court must determine if the detention is "custodial." Then the court must determine

 whether the conduct by law enforcement qualifies as "interrogation."

            Law enforcement      "detentions    in Pennsylvania become custodial       when, under the totality

 of the circumstances,       the conditions and/or duration of the detention become so coercive         as to
 constitute the functional equivalent of artest."105 The applicable Standard for determining

 whether a detention is custodial
                         .
                                  is an objective one based on the totality of the. circumstances.              106


The terms "arrest and "custodial detention" have been used interchangeably.l'" An arrest is

defined as:

                    [a]ny act that indicates an intention to take the person into custody
                    and subjects him to the actual control and will of the person making
                    the arrest. ... The test is an objective one, i.e., viewed in the light of
                    the reasonable impression conveyed to the person subjected to the
                    seizure rather than the strictly subjective view of the officers or the
                    persons being seized. 108


"[A] reviewing court is to consider the particular facts of each case in order to determine whether
                                109
a detention is custodial."

           "Interrogation" is police conduct "calculated to, expected to, or likely to evoke

admission,"!'? "Interrogation occurs where the police should know that their words or actions are




•04   Com v, Busch, 71 J A.2d 97, 100 (Pa. Super. 1998Xcirations omitted).
ios Com v. Mannion. 725 A.2d 196, 200 (Pa. Super. 1999)(emphasis added).
106
     Walkden, 103 A.3d 432, 439 (Pa. Commw. Ct. 2014).
107
    .E!"1, 114 A.3d at 845.
1°'
    Com v. Butler. 729 A.2d 1134, 1137 (Pa. Super. 1999).
109 Id.
110 I.<!. (citations omitted)(emphasis added).


                                                           14
 reasonably likely to elicit an incriminating response from the suspect."!'! If a person is both in

 custodyand underwent to art interrogation during that time, courts will. find that he or she was

 subject to a custodial interrogation.

            Once it has been determined that the person was subject to a custodial interrogation, the

court will look to see if the law enforcement agent properly provided the arrestee with Miranda

warnings. The United States Supreme Court has explained that "the Miranda safeguards come into

play whenever a person in custody is subjected to either express questioning or its functional

equivalent."112 "The principles surrounding Miranda warnings are also well settled. The

prosecution may not use statements stemming from a custodial interrogation of a defendant unless

it demonstrates that he was apprised of his right against self-incrimination and his right to

counsel."!" "Unless a person is advised of his Miranda rights prior to custodial interrogation by

law enforcement officers in a criminal proceeding, evidence resulting from such interrogation

cannot be used against him."114

                                                       ANALYSIS

            In the first Part of this Section, this Court will first discuss how any why, during the second

interaction, Alvarado was in custody. Then, this Court will examine why Trooper Acord's

questions were incriminating in nature and; thus, Alvarado was subject to custodial interrogation.

Because Alvarado was subject to a custodial interrogation during the second interaction; he was

entitled to Miranda warnings. Thus, because Alvarado was not provided Miranda warnings, all

statements made during the second interaction must be suppressed. Lastly, this Court will discuss




111 ~         723 A.2d at 149.
112 Rhode   Island v. Innis, 446 U.S. 291, 301-302 (1980).
•1> Com. v. Gaul, 912 A.2d 252, 255 (Pa. 2006).
114
    In Interest of MeUon, 476A.2d I I, 13 (Pa. Super. 1984)(citations omitted).

                                                          15
 why the Commonwealth's            argument, that the second interaction was an investigatory detention,

 fails.

          In the second Part of this Section, this Court discuss the admissibility of the Blood Alcohol

 Results taken at Saint Mary's Hospital. Ultimately the second Pan of this Section will state that

 the results are suppressed because they were a product of an unlawful detainment, in violation of

 Alvarado's Miranda rights, and in violation of the two hour rule.

          l. The Second Interaction Between Trooper Acord and Alvarado Was a Custodial
             Interrogation Which. Required Miranda Warnings and, Because Trooper Acord
             Failed to .· Provide Miranda. Warnings, Any of Alvarado's Statements Made
             DuringJhe Second Interaction Are Suppressed.

          Trooper Acord made the decision to arrest Alvarado prior to initiating the second

interaction.115 Trooper Acord expressed to Alvarado his decision to arrest him by the manner in

which Trooper Acord conducted himself, the tenor of his questions and tone of his voice, and

manner in which he asked 'the questions during the second interaction. Knowing that Alvarado was ·

not free to leave, and portraying this to Alvarado, Trooper Acord proceeded to ask Alvarado

incriminating questions. Accordingly, Alvarado was entitled to his Miranda warnings because he

was (a) in custody and (b)asked incriminating questions.Because he was not provided his Miranda

warnings, any statements made during the second interaction are suppressed.

          a. Alvarado Was in Custody During the Second Interaction.

          In analyzing the particular facts of this case, it is clear that the second interaction was a

custodial detention because Alvarado was "taken into custody [and] otherwise deprived of his

freedom of action in (a] significant way."116 In applying the objective standard for determining




m N.T. S/1/IS, 32:4·14.
u6 Johnson 541 A.2d at 336 (quoting Miranda, 384 U.S ai 444; see !!.lsQ Mannion. 725 A.2d 196, 200 (Pa. Super.
I 999)(noting that "a reviewing court is to consider the particular facts of each case in order to determine whether a
detention is custodial.").

                                                           16
 whether Alvarado's second interaction          with Trooper Acord was "custodial," based on the totality
 of the circumstances, it is clear that the reasonable impression conveyed to Alvarado was that he

 was under arrest. 117
         Trooper Acord knew that Alvarado was detained during the second interaction and

communiceted this to Alvarado. At the suppression hearing, regarding the second interaction,

Trooper Acord testified as follows:

         Q: Okay. So you've have this minor encounter with [Alvarado]. You've asked him
         some pretty innocuous questions. You get back in your car; and that moment while
         you' re in your patrol car you say to your fellow officer he's hammered, right?
         A: Yes118

         Q: In your opinion, as of that moment if Mr. Alvarado wanted to walk away and
         just keep walking, would you have stopped him?
         A: Yes.119

         Q: If Mr. Alvarado had the ability to get back in his car and drive away, would you
         have prevented him from doing that?
         A: Yes.!20

         Q: So at that moment, after you determined that he was hammered, Mr. Alvarado
         was no longer free to leave, correct?
         A: That's correct ... He was not free to leave.121

         Q: [l You already formed the opinion when you got out ofyourpatrol car the second
         time that that man was not free to leave, either on foot or by vehicle, correct?
         A: That's correct.122          .


         Q: So, in essence, he was detained, correct?
         A: When I re-approached him?
         Q:Yes.
         A: And I began to question him again?
         Q:Yes.

117
    ~   ~        723 A.2d at 148 (ruling that the standard Pennsylvania courts use in determining whether a person's
interaction with law enforcement is "custodial," or whether law enforcement initiated a "custodial interrogation," is
an objective one based on a totality of the circumstances with due consideration given to the reasonable impression
conveyed to the person interrogated}.
111 N.T. 5/7/15, 30: 12-17
119
    N.T. 5n115, 30: 1s-21.
120
    N.T. sru». 30: 22-25
121
    N.T. snns, 31: 1-13.
122
    N.T. 517/15, 31·32.

                                                          17
          A: At that point he was detained) yes.
          Q: He was detained. Not free to leave.
          A: He was not free to leave no.
          Q: And if he tried to walk away you would have stopped him?
          A: Absolutely. 123

 From his testimony, it is clear that Trooper Acord knew that Alvarado                    was detained     during his

 second interaction with Trooper Acord.

          Trooper Acord expressed to Alvarado his decision to arrest him by the mannerin which

Trooper Acord conducted himself, the tenor of his questions and tone of his voice, and manner in

which he asked the questions during the second interaction. The evidence shows that Alvarado

knew he was detained front the actions of Trooper Acord. "[Ujnder the totality of the

circumstances, the conditions ...            of the detention [during the second interaction became] so

coercive as to constitute the functional equivalent of arrest."124

         Trooper Acord expressed to Alvarado his decision that Alvarado was under arrest by the

way he conducted hiinself.125 For example, when Trooper Acord approached Alvarado for their

second interaction, Alvarado was kneeling down and changing his front right tire. t26 As he

approached Alvarado's vehicle, the first thing that Trooper Acord said was. "Mr. Vega, lwant you

to step over here and talk to me real quick."127 In essence, Trooper Acord commanded Alvarado

to stop changing his tire, stand behind the back rear of his vehicle, and between two State Troopers

and the concrete barrier on the shoulder of the highway.t28 Trooper Acord then proceeded to ask




123
    N.T. Sn/IS; 32: 4-14.
124
    Mannion. 72S A.2d at 200 (emphasis added).
l2S See~         723 A.2d at 148 (holding that the standard Pennsylvania courts use in determining whethera
person's interaction with law enforcement is "custodial," or whether law enforcement initiated a "custodial
interrogation," is an objective one based on a totality of the circumstances wilh due consideration given to the
reasonable impression conveyed to the person interrogated).
126 Video.                              .
127 Video.
iis Video.


                                                          18
           Alvarado· various questions which he already answered, now calling into doubt the answers

           Alvarado initially provided.129

                      Moments after commanding that Alvarado step away from his front right tire, and asking

          Alvarado various questions, Trooper Acord demanded Alvarado "[sjtand over here and talk to me

          a little bit more."1j0   At this time, Trooper Acord made Alvarado move again and stand directly
- I
     I
 . !I
          between the patrol cat and the Defendant's car and states "stand on that line for me and face me."131

          Trooper Acord then asks Alvarado "you don't have any weapon do you?" As Trooper Acord asks

          this question, he. begins to look into Alvarado's pockets, asks what he is carrying, and perform a

          brief pat down indicating the functional equivalent of an artest.132 Furthermore, at no point did

         Trooper Acord offer to or actually give Alvarado his driver's license back to him. By commanding

         Alvarado around, demanding Alvarado speak with him, ordering him to move two times, and

         withholding his license, it was cleat that Trooper Acord took control of Alvarado and deprived

         him of the his freedom to walk or drive away.133 Moreover these same facts gave the reasonable

         impression to Alvarado. that he was not free to leave. 134

                  For the foregoing reasons, "the circumstances               O   of [Alvarado's] detention [became] so

         coercive as to constitute the functional equivalent of an arrest" and, thus, the detention was

         custodial. 135




         129
             Video.
         130
             Video.
         131
             Video.
 I
 I
         132Video.
         133
             ~   Busch, 713 A.2d at l 00 (holding that a person is subject to custodial interrogation when is deprived of his
         freedom in a significant way or reasonably believes his freedom of action or movement is restricted).
         134
             Qm'.nn. 723 A.2d at 148.
         m Mannion. 725 A.2d at 200.
                                                                    19
          b. Trooper Acord Asked Alvarado Incriminating Questions.

          In viewing Trooper Acord's questioning in conjunction with his conduct, it is clear that

 Alvarado was subject to "interrogation" during the second interaction.

         Interrogation occurred during the second interaction because Trooper Acord should have

 known "that [his] words or actions [were] reasonably likely to elicit an incriminating response.''136

For example, one of the first questions Trooper Acord asked Alvarado during the second

 interaction was "[wjhere are you coming frotn?''137 This was a question asked during the first

 interaction, but this time, the question was asked in an inquisitive tone of voice Such as to

communicate to Alvarado that Trooper Acord severely doubted the answer Alvarado had

previously given; The same can be said for the way in which Trooper Acord re-asked Alvarado

"[hjow come you' re heading this way if you' re heading home?" 138 Most notably, during the second

interaction, Trooper Acord's probing turned into purely incriminating questions. These questions

escalated from ones assessing the situation and offering aid to questions seeking to incriminate

Alvarado. Trooper Acord should have known that his "Words or actions (were] reascnablylikely

to elicit an incriminating response."!"

         Trooper Acord's questioning was interrogation because his conduct was "calculated to,

expected to, or likely to evoke admission."140 Trooper Acord's conduct and questioning during the




1l6
    ~.       723 A.2d at 149 (ruling that "[i]nterrogation occurs where the police should know that their words or
actions are reasonably likely to elicit an incriminating response fromihe suspect.").
m Video.                                                                              ·
IJI Video. The patrol video in this case indicates that Alvarado told Trooper Acord he was going home. However,
after viewing Alvarado's address on his driver's license, Trooper Acord questioned Alvarado why he was stopped at
a certain point on the highway if he lived atihe address listed on his driver's license? Mainly, Trooper Acord
believed that Alvarado missed his exit, and questioned him to that effect.
139
    ~       723 A.2d at 149 (highlighting that "[i]nterrogation occurs where the police should know that their words
or actions are reasonably likely to elicit an incriminating response from the suspect.").
140
    Mannion, 725 A.2d at 200 (ciiations omitted),

                                                         20
 second interaction served no purpose other than to incriminate Alvarado.Trooper                      Acord testified

 to his intent to have Alvarado incriminate himself at the suppression               hearing:

            Q: So you go to re-approach the defendant. What's going through your mind as
            you're doing that?                                      ·               ·
            A: I'm going to talk to him a little bit more just to verify - actually, at that point
            I'm probably thinking I want to get him to talk to me a little bit more so I get his
            voice on my audio recorder. And his speech was, obviously, very - he was having
            trouble answering questions. I just wanted to continue, you know, building my case
            for his impairment.141                              ·


Trooper Acord made it clear he wanted to "build his case tor impairment" when he directly

inquired about Alvarado's drinking that evening: This testimony shows that Trooper Acord's

conduct was "calculated to" evoke incriminating statements.142 After Trooper Acord ordered

Alvarado to move, for a Second time, between the patrol car and Alvarado's car, Trooper Acord

asked Alvarado when his last drink wa.s.143 Alvarado responded that his last drink was twenty

minutes prior to seeing Trooper Acord.144 Given that the evidence clearly indicated that Trooper

Acord suspected a DUI, this question was the linchpin ofTrooper Acord's effort to have Alvarado

incriminate himself.

            For the foregoing reasons, based on the totality of the circumstances=-namely the re-asking

questions in a way such as          to   call to doubt Alvarado's answers, the directing of Alvarado's

movements, and asking when Alvarado's last drink was-it is clear that Trooper Acord was

interrogating Alvarado such that he was required to provide him Miranda warnings.




141
      N.T. 517115, 20-21.
142
    ~   Mannion. 725 A.2d at 200 (asserting that interrogation is police conduct "calculated to, expected to, or likely
to evoke admission.'').
m N.T. Sl7115, 23-24.
144
    N.T. 517115; 24: 1-3.

                                                          21
I'l
 .,




l
.J
_f
                c, Alvarado Was Subject to A Custodial Interrogation, and Was Not Provided
                     Miranda Warnings. Thus, Alvarado's Statements Made During the Second
                     loteractio~ Are Suppressed.

                The questioning by Trooper Acord, during the second interaction, was a custodial

       interrogation. Therefore, Miranda warnings must have been given to Alvarado. As the· United

       States Supreme Court has stated, "the Miranda safeguards come into play whenever a person in

       custody is subjected to either express questioning or its functional equivalent.?"! Because

       Alvarado was not provided Miranda warnings, the statements obtained during the second'

       interaction were a product of a violation of Alvarado's Constitutional rights.146 Accordingly, the

       statements obtained during the second interaction cannot be used against Alvarado and therefore

       must be suppressed.':"

                d. This Court Rejects the Commonwealth's                   Argument That.the SecendInteracdon
                   Was an Investigatory Detention.

               The Commonwealth argues that the second interaction was                       an   investigatory detention

       supported by reasonable suspicion, not a custodial interrogation. For the reasons previously stated,

       this Court disagrees and finds that the second interaction was a custodial interrogation.

       Nonetheless, this Opinion will now address the merits of the Commonwealth's argument.

               Alvarado's detention during the second interaction was not temporary, it was permanent

      and coercive. An "[investigative] detention is temporary ... and does not possesses the coercive

      conditions consistent with a formal arrest."148 Conversely, the custodial detentions are permanent

      arrests, seizures, or situations where the detention becomes so coercive such as to constitute the


      145   Rhode Island v. lnnis, 446 U.S. 291, 301-302(1980).
      146
            Qm!.!, 912 A.2d at 255 (declaring that ''(t]he principles surrounding Miranda warnings are also well senled, The
        prosecution may not use statements stemming from a custodial interrogation of a defendant unless it demonstrates
      · that he was apprised of his right against self-incrimination and his right to counsel.").
        147
            In Interest of Mellott 476 A.2d at IJ (citations omihed)(ruling that "[ujnless a person is advised of his Miranda
        rights prior to custodial interrogation by law enforcement officers in a criminal proceeding, evidence resulting from
        such interrogation cannot be used against him.").                                                        ·
        141 DeHart. 745 A.2d at 636.


                                                                 22
 functional equivalent of an arrest.149 As Trooper Acord testified, Alvarado was not free to leave

 after the first interaction.

            Q; So, in essence, he was detained, correct?
            A; When I re-approached him?·
            Q:Yes.
            A; And I began to question him again?
            Q:Yes.
            A: At that point he was detained, yes.
            Q; He was detained. Not free to leave.
            A: He was not free to leave no.
            Q: And if he tried to walk away you would have stopped him?
            A: Absolutely. ,so

Further, as stated supra, Trooper Acord expressed to Alvarado his decision to arrest him by the

manner in which Trooper Acord conducted himself, the tenor of his questions and tone of his

voice, and manner in which he asked the questions during the second interaction. Objectively

viewing the totality of the circumstances and particular facts of this case supports a finding that

Trooper Acord gave the impression to Alvarado that he was under arrest. There is no evidence to

support a finding that the second interaction was "temporary" or not coercive and significant

evidence to the contrary. For this reason; the second interaction was not temporary; it was

permanent and, thus, a custodial detention.

            The second interaction was not investigative and did not fit the purpose or character of an

investigative detention. The purpose of an investigative detention is to provide law enforcement

an opportunity to conduct further investigation into suspected criminal activity.P' When Trooper

Acord returned to his patrol car to           run   Alvarado's driver's license and registration number, he




149   Butler, 729 A.2d at 1137.
ISO N.T.   511115, 32: 4-14.
151
      See~         745A.2d at 638 (ruling that an investigatory detention allows law enforcement to investigate
suspected criminal activity).

                                                            23
 notified his partner that Alvarado was a "drunk driver"152 and that he was "hemmered.t'!" Trooper

 Acord uses the term "hammered" when describing somebody who is "more than a little drunk."154

 Trooper Acord then told to his partner that he was not going to let Alvarado change his tire and

determined that Alvarado was no longer free to leave. rss

           The foregoing facts clearly indicate that no further investigation was necessary to convince

Trooper Acord, who has made roughly 350 DUI arrests, that Alvarado was intoxicated and an

arrest was going to be made. For instance, Trooper Acord's use of the wordthammered," and his

corresponding description of the term, showed that there was no doubt in his mind that Alvarado

was intoxicated. Trooper Acord testified at the suppression hearing that his plan in re-approaching

Alvarado was to build his case for impairment.!" His only efforts in doing so were to ask

incriminating questions and subject Alvarado toan interrogation. These circumstances do riot.fit

the purpose of the investigative detention because once the determination to arrest was made,

Alvarado was in custody and entitled to his Miranda warnings prior to being interrogated.

           This Court believes that Commonwealth v. DeHan is persuasive, distinguishable from the

case at hand, and further supports this Court's position. In DeHart, State Troopers and the

occupants of a parked car had a mere encounter where the Troopers asked.r'what's going on

here?"157 The occupant's response aroused suspicions and caused the questioning Trooper to say

to his partner "something's not right here, ... I'm going to get out of the car and see what's going

on here."158 At that point, the Troopers in DeHan exited their vehicle to approach the defendants




m Video.
Ul N.T. 517115, 20:1-10.
154 N.T. snn», 30:7-9.
15' N.T. 511115, 32:4-14.
IS6 N.T. 511115, 20-21.
m~          145 A.2d at 635.
UI   Id.

                                                    24
I'
j




      to do determine if there     was criminal     activity.1s9 Consequently, the court's analysis   was based
      largely on finding if there was reasonable suspicion to permit a subsequent investigatory detention

      (i.e. the Troopers exiting their cat and approaching the defendants).      160


               Conversely, here, after the mere encounter between Trooper Acord and Alvarado, Trooper

      Acord told his partner that Alvarado was         a "drunk   driver" and that he was "hammered." Trooper

      Acord then said to his partner that he was not going to let· Alvarado change his tire because

      Alvarado might hurt himself, and that he was not free to leave.161 Trooper Acord's expressions to

      his partner are clearly distinguishable from those in DeHart; namely that "something's not right

     here, ... I'm going to get out of the car and see what's going on here."162 Unlike the Troopers in

      DeHart, Trooper Acord determined there was criminal activity during or after the first encounter.

     With that determination in mind, unlike the circumstances in DeHart, there was nothing further to

     investigate. Accordingly, Alvarado was then subject to a custodial interrogation, not an

     investigatory detention, and entitled to his Miranda warnings.

               For the foregoing reasons, this Court rejects the Commonwealth's argument.

         II.      The Blood Alcohol Results Taken At Saint Mary's Hospital Are Suppressed as A
                  Product Of an Unlawful Detainment, in Violation of Alvarado's Miranda Rights,
                  apd In Vlolgtion of the Two Hour Rule.

               Alvarado was charged with 75 Pa. C.S. § 3802(c) which requires "that the alcohol

     concentration in the individual's blood or breath is 0.16% or higher within two /,ours after the

     individual has driven, operated or been in actual physical controi of the movement of the

     vehicle."163 While the Commonwealth agrees that it has no direct evidence           as to when Alvarado


     U9Id.
     160
         ld. al 636-37.
     161 N.T. 517/15, 20:14-18.
     J62 .!&l:f.m, 745 A.2d at 635.
     l6J 75 Pa. Cons, Stat. Ann. § 3802 (emphasis added).

                                                            25
  was driving, it contends that it can meet its burden through circumstantialevidence.P'                Specifically,

  the Commonwealth argues that it can prove that the test results were taken within two hours of the

  operation of the vehicle through Alvarado's statement that he drank twenty minutes prior to

  Trooper Acord's arrival.165 However, as previously discussed, the statements made during the

 second interaction, including the statement that Alvarado was drinking twenty minutes before

 Trooper Acord's arrival and that he was a bar called "The Press," are suppressed.

         The suppression of the statements made to Trooper Acord about when Alvarado was

 drinking is determinative of this suppression ruling. Based on the suppression of the statements,

 there is no circumstantial evidence or statements that Alvarado was driving, operating or in actual

 physical control of the movement of the vehicle within two hours of the blood test as required

 by 75 Pa. Cons. Stat. Ann. § 3802. 166

         Earlier in the evening, another State Trooper, Trooper Hand, saw Alvarado on pull over on

the shoulder of the road but did not stop because he was on his way to an emergency. There                           Was

no evidence as to the time of this observation. There was no evidence of what was the time

between the first Trooper seeing Alvarado and when the second Trooper pulled behind him. There

was no circumstantial evidence as to how long the car was parked on the shoulder of the road.

         Without the statements made by Alvarado as to the time he was drinking, there is no

circumstantial statements that Alvarado was driving, operating or in actual physical control of the

movement of the vehicle within two hours of the blood test. 167 Therefore the blood test must be

suppressed for the charge under 75 Pa. C.S. § 3802(c).



164 N.T. 517115, 10:6-10.
t65 N.T. 517115, 10:10-22.
1116•
    15 Pa. Cons. Stat. Arni.§ 3802 (emphasis added).
167
    N.T. S/7/IS, 74: 17-23..At the suppression hearing, this Court addressed the effect that the suppression of
Alvarado's statements would have on the application of the two-hour rule. ln doing so, this Court stated the
following: "With regard to the two-hour question, if the statement was admissible, I do believe there's sufficient

                                                          26
                                                              CONCLUSION

                       For the foregoing reasons, this Court properly Granted Alvardao's Motion to Suppress.



                                                                                       BY THE COURT:




              DATE~/Q-1
                      r
                        ...rJ/)i.f
                                                                                   -~< R0 .            iiLLON,J.

,   '•   :)
-. )




              circumstantial evidence to establish that the test was taken within the rwo-hour limit and that would have been
              admissible."

                                                                       27
      COPIES SENT TO: Commonwealth v. Alvarado,
      CP-09-CR-000730-201S
.1.                                               ;


                                                  i-


      Richard A: Gutman, Esquire
      8515 Frankford Avenue
      Philadelphia, PA 1913 6

      Jill M. Graziano, Esquire
      Office of the District Attorney
      Bucks County Justice Center
      100 N. Main Street, 2nd Floor
      Doylestown, PA 18901 ·
