J-A14038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                v.                             :
                                               :
    LANCE WILLIAMS                             :
                                               :
                       Appellee                :      No. 3525 EDA 2017


               Appeal from the Order Entered September 27, 2017
              in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0008669-2016


BEFORE:      GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                            FILED NOVEMBER 09, 2018

       The Commonwealth of Pennsylvania appeals1 from the order of the

Court of Common Pleas of Montgomery County granting the pretrial

suppression motion of Appellee Lance Williams. After careful review, we are

constrained to reverse and remand for further proceedings.

       “On June 6, 2017, as part of his omnibus pretrial motion, [Appellee]

sought suppression of narcotics seized by police officers after a warrantless

search of the vehicle he was driving on the evening of September 14, 2016.”

Trial Ct. Op. at 1. The omnibus pretrial motion alleged that Appellee’s arrest
____________________________________________


1The Commonwealth certified in its notice of appeal that the order in question
will terminate or substantially handicap its prosecution of Appellee. Hence,
we have jurisdiction over this appeal. See Commonwealth v. Moyer, 954
A.2d 659, 661 n.1 (Pa. Super. 2008) (en banc) (citing Commonwealth v.
Dugger, 486 A.2d 382 (Pa. 1985); Pa.R.A.P. 311(d)).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A14038-18



was illegal and that the search of his vehicle was conducted without a warrant

or probable cause. Omnibus Mot., 6/6/2017, at 3 (not paginated).

       On August 22, 2017, the trial court held a hearing on the motion to

suppress.2    At the beginning of the hearing, Appellee contended that “the

consent to search, which was alleged to have been obtained in this case, was

done so in a not-knowing, voluntary, and intelligent manner. Therefore, any

fruits therefrom deprive the defendant of his federal and constitutional rights.”

N.T., 8/22/2017, at 3.

       The    Commonwealth         first   presented   the   evidence   of   Officer

Michael Dalbey, who was then serving with the Marlborough Township Police

Department but, on the day of the incident, had been with the Upper

Perkiomen Police Department. Id. at 4-6. Officer Dalbey testified that, on

September 14, 2016, at approximately 7:00 P.M., he was stopped at a stop

sign in his marked patrol vehicle while monitoring traffic at Penn Street and

Route 663 in Pennsburg Borough, Montgomery County.                 Officer Dalbey

continued that “[a] white Chrysler four-door passed by [his] location in the

westward direction.       It caught [his] attention because of the dark tinted

windows.” Id. at 7. Officer Dalbey explained that he followed that automobile

for about half a mile before turning on his patrol car’s red and blue lights. Id.

at 7-8, 17.

____________________________________________


2 “Our scope of review is limited to the evidence presented at the suppression
hearing.” Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa. Super. 2018)
(citations omitted).

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      Officer Dalbey testified that, after the Chrysler pulled into the “well lit”

parking lot of an E-Z Shoppe, he pulled his patrol vehicle behind the Chrysler,

exited his vehicle, and approached the Chrysler “cautiously,” as he did not

“know the number of occupants in the vehicle” due to the overly tinted

windows, including the back windshield. Id. at 7-8, 10. The driver of the

Chrysler rolled down his side window and provided the officer with a

Pennsylvania driver’s license identifying him as Lance Williams. Id. at 8, 10.

Officer Dalbey described Appellee as “jittery, kind of anxious or excited, [and]

nervous[.]” Id. at 10. Two passengers were seated in the vehicle. Id. at 8.

      Officer Dalbey asserted that he returned to his patrol vehicle, wrote a

warning to Appellee to fix the Chrysler’s illegally tinted windows within fifteen

days, turned off his emergency lights, again exited his patrol vehicle, and

asked Appellee “to meet [him] at the rear of the vehicle to discuss the warning

card[,]” and that Appellee complied. Id. at 11. Officer Dalbey testified that

he returned Appellee’s license, id. at 22, then had the following conversation:

      During the explanation of why I stopped him, I told him why. And
      then when I told him he was free to leave, he turned around − he
      took like a step and a half, turned around, and reengaged me, and
      asked me how long I’ve been a police officer. We discussed that.
      He said his father was a police officer in Philadelphia. And then
      we started discussing my references to the city. And during the
      conversation, I came to know that he grew up on one side of
      Roosevelt Boulevard and I grew up on the other side of Roosevelt
      Boulevard. At that time, we engaged in further conversation. And
      I said, Lance, do you think this is a high-crime area? And he said,
      no, you guys probably get domestics or something. I said, no, we
      have a bad drug problem around here, man. So we continued to
      talk. And I said, listen, do you have any weapons or narcotics,
      anything that’s going to hurt anyone? And he said no. I said, do

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J-A14038-18


       you mind if my partner, [O]fficer McVeigh arrives on the scene
       just to kind of back me up? And Lance’s response was, no, you
       can check the vehicle, there’s nothing in it. I said, are you sure?
       He said, yeah. He said, to the best of my recollection, the trunk
       smells like cat piss. And at that point, I indicated that [O]fficer
       McVeigh needed to search the vehicle.

Id. at 13-14. During cross-examination, Officer Dalbey testified that he never

asked Appellee to sign a consent to search form and never told Appellee that

he had a right to refuse his consent to search. Id. at 23-26.

       Officer James McVeigh of the Upper Perkiomen Police Department

testified next. Id. at 30. He testified that, when he arrived at the traffic stop,

he parked his patrol vehicle in a small parking lot on a different street, where

it could not be seen from Appellee’s location.          Id. at 41. Officer McVeigh

corroborated that Officer Dalbey asked Appellee if “his partner could search

the vehicle[,]” and that Appellee answered, “[Y]eah, you can search it, there’s

nothing in the vehicle.” Id. at 34. He also confirmed that only two officers –

himself and Officer Dalbey – were present at the time Appellee gave his

consent to search the Chrysler. Id. at 41.3 Officer McVeigh stated that neither

Officer Dalbey nor Appellee raised their voices, but, instead, they had “a

conversation like we’re having now” while standing “pretty close, as if you’re

having a normal conversation with somebody.” Id. at 35. Officer McVeigh

acknowledged that he also never told Appellee that he had the right to refuse

consent to search.        Id. at 42-43.        Officer McVeigh testified that, upon


____________________________________________


3 A third police officer, Officer Lavin, arrived after the vehicle search was
complete and Appellee was arrested. N.T., 8/22/2017, at 24.

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J-A14038-18



searching Appellee’s vehicle, he found three packages of heroin, one of which

was open, then handcuffed Appellee. Id. at 37, 40.

      Appellee did not present any witnesses. Id. at 45.

      At the conclusion of the hearing, the trial court permitted the parties to

file briefs, id. at 46, and, on September 27, 2017, the court granted Appellee’s

motion to suppress. This appeal followed.

      The Commonwealth raises one issue on appeal:

            Where a lawful traffic stop ended and devolved into a mere
      encounter, did the [trial] court err in suppressing the fruits of a
      voluntary, consensual search of the car [Appellee] was driving?

Commonwealth’s Brief at 4.

      Our standard of review from a challenge to a ruling on a suppression

motion is as follows:

      [O]ur role is to determine:

         whether the suppression court’s factual findings are
         supported by the record and whether the legal conclusions
         drawn from those facts are correct. . . . Where the
         suppression court’s factual findings are supported by the
         record, we are bound by these findings and may reverse
         only if the court’s legal conclusions are erroneous. Where,
         as here, the appeal of the determination of the suppression
         court turns on allegations of legal error, the suppression
         court’s legal conclusions are not binding on an appellate
         court, whose duty it is to determine if the suppression court
         properly applied the law to the facts. Thus, the conclusions
         of law of the courts below are subject to our plenary
         review.

      Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654
      (2010) (internal quotations and citations omitted). Our scope of
      review is limited to the evidence presented at the suppression
      hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1080 (2013).

                                     -5-
J-A14038-18


      Commonwealth v. Mackey, 177 A.3d 221, 226 (Pa. Super.
      2017).

Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa. Super. 2018).

      Our standard of review when the Commonwealth appeals from a
      suppression order is well-settled. . . . [W]hen an appellate court
      reviews the ruling of a suppression court, we 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.

Commonwealth v. Rosas, 875 A.2d 341, 346 (Pa. Super. 2005).

      “The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect citizens from unreasonable

searches and seizures, including those entailing only a brief detention.”

Commonwealth v. Reppert, 814 A.2d 1196, 1201 (Pa. Super. 2002) (en

banc) (citation omitted).

      A search conducted without a warrant is deemed to be
      unreasonable and therefore constitutionally impermissible, unless
      an established exception applies. One such exception is consent,
      voluntarily given. The central Fourth Amendment inquiries in
      consent cases entail assessment of the constitutional validity of
      the citizen/police encounter giving rise to the consent; and,
      ultimately, the voluntariness of consent. Where the underlying
      encounter is found to be lawful, voluntariness becomes the
      exclusive focus.

Commonwealth v. Strickler, 757 A.2d 884, 888-89 (Pa. 2000) (footnotes

and citations omitted).

      Our courts have delineated three different categories of police and

citizen interactions: mere encounters, investigative detentions, and custodial

detentions −



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J-A14038-18



       [I]n assessing the lawfulness of citizen/police encounters, a
       central, threshold issue is whether or not the citizen-subject has
       been seized. Instances of police questioning involving no seizure
       or detentive aspect (mere or consensual encounters) need not be
       supported by any level of suspicion in order to maintain validity.
       Valid citizen/police interactions which constitute seizures
       generally fall within two categories, distinguished according to the
       degree of restraint upon a citizen’s liberty: the investigative
       detention or Terry stop[4], which subjects an individual to a stop
       and a period of detention but is not so coercive as to constitute
       the functional equivalent of an arrest; and a custodial detention
       or arrest, the more restrictive form of permissible encounters. To
       maintain constitutional validity, an investigative detention must
       be supported by a reasonable and articulable suspicion that the
       person seized is engaged in criminal activity and may continue
       only so long as is necessary to confirm or dispel such suspicion;
       whereas, a custodial detention is legal only if based on probable
       cause.

Id. at 889 (footnote omitted) (citations omitted); see Commonwealth v.

Thomas, 179 A.3d 77, 82 (Pa. Super. 2018) (“police officers may approach

citizens and ask them questions without violating the Fourth Amendment” and

“does not constitute a seizure”); see also Florida v. Bostick, 501 U.S. 429,

434 (1991) (police can approach people at random, ask questions, and seek

consent to search).

       The level of police-citizen interaction may alter over the course of one

incident. For example, what begins as a mere encounter could escalate into




____________________________________________


4See Terry v. Ohio, 392 U.S. 1 (1968). A “Terry stop” is “[a]n investigative
detention [that] occurs when a police officer temporarily detains an individual
by means of physical force or a show of authority for investigative purposes.”
Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super. 2005) (citation
omitted).

                                           -7-
J-A14038-18



an investigative detention and then devolve into a mere encounter.          See

Strickler, supra at 889-91.

      After police finish processing a traffic infraction, the determination of

whether a continuing interaction constitutes a mere encounter or an

investigative detention centers upon whether the individual would objectively

believe that he was free to end the interaction and to refuse a request to

answer questions. See id. at 889-91 (“in the context of a traffic or similar

stop, once the purpose for the stop has been completed, the question arises:

Does the individual have objective reasons to believe that he is (or is not) free

to end the police/citizen encounter?”), 899 (“In evaluating a consensual

encounter that follows a traffic or similar stop, a central consideration will be

whether the objective circumstances would demonstrate to a reasonable

citizen that he is no longer subject to domination by police.”).

      Here, the parties do not dispute that: (1) the initial interaction between

Appellee and Officer Dalbey was a proper traffic stop due to the Chrysler’s

illegally tinted windows and therefore a lawful investigative detention; and (2)

this initial investigative detention ended when Officer Dalbey told Appellee he

was free to leave and became a mere encounter. Commonwealth’s Brief at

14; Appellee’s Brief at 8, 11; N.T., 8/22/2017, at 7, 13-14; Trial Ct. Op. at 2,

6.

      The Commonwealth contends that thereafter only a mere encounter

existed and Officer Dalbey thus did not need any suspicion that Appellee was

engaging in criminal activity when he requested Appellee’s consent to search

                                      -8-
J-A14038-18



the Chrysler.     See Commonwealth’s Brief at 13-14.5        The Commonwealth

argues that Appellee’s “consent to search was valid largely for the same

reasons that the second interaction was not a detention, but rather a mere

encounter.” Id. at 19.

       Nevertheless, the trial court found: “Given the definitive change in tone

and purpose from the ‘small talk’ initiated by [Appellee] after he was told he

could leave, to the pointed questioning foisted upon him by the officers, the

record in this case aptly reflects [Appellee] was, indeed, subject to an

investigative detention.”       Trial Ct. Op. at 6.   To resume an investigative

detention, Officer Dalbey would have needed to have a reasonable suspicion

that Appellee was engaging in criminal activity. See Strickler, 757 A.2d at

889-90.     The trial court concluded that “[t]he Commonwealth failed to

establish that the police officers had the requisite reasonable suspicion to

support their investigatory detention.” Trial Ct. Op. at 6.

       Appellee agrees with the trial court that “any questions that succeeded

the already completed traffic stop, particularly those of an investigative

capacity[,] rendered the encounter an unlawful detention. This is especially

apparent when Officer Dalbey asks about contraband in the vehicle.”

Appellee’s Brief at 9.


____________________________________________


5 Throughout its brief, the Commonwealth refers to Appellee’s consent as
“voluntary” or “voluntarily” given. See, e.g., Commonwealth’s Brief at 4-5,
11-13. It also concedes that the trial court did not address whether Appellee’s
consent was voluntary. See id. at 11 n.3.

                                           -9-
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       In its reply brief, the Commonwealth counters this contention, arguing

that “[p]olice are permitted to ask questions, including ‘investigative’

questions, and may make requests for consent to search, during a mere

encounter.” Commonwealth’s Reply Brief at 5.

       Our inquiry is thereby threefold:           (1) After Officer Dalbey informed

Appellee that he was “free to leave,” did the interaction between Appellee and

Officer Dalbey escalate into an investigative detention or remain a mere

encounter when Officer Dalbey asked Appellee additional questions? (2) If

the interaction again became an investigative detention, did Officer Dalbey

have reasonable suspicion of criminal activity? (3) Was Appellee’s consent to

search voluntary?6

____________________________________________


6 The trial court only articulated two issues, stating that “the underlying appeal
requires analysis of the following two questions”: “[f]irst, whether [Appellee]
was subjected to an investigatory detention; and second, whether the police
possessed the requisite reasonable suspicion to detain [Appellee].” Trial Ct.
Op. at 3. As the trial court found that Appellee was subject to an illegal
investigatory detention, it did not need to reach the question of whether
Appellee’s consent to search his vehicle was voluntarily given.

However, the level of police-citizen interaction and the voluntariness of
consent are distinct inquiries, albeit with overlapping analyses.       See
Strickler, 757 A.2d at 888-89 (finding that a party agreed to a search by
police during a mere encounter does not automatically cause that party’s
consent to be voluntary: “[s]ince both the tests for voluntariness and for a
seizure centrally entail an examination of the objective circumstances
surrounding the police/citizen encounter to determine whether there was a
show of authority that would impact upon a reasonable citizen-subject’s
perspective, there is a substantial, necessary overlap in the analyses”);
Commonwealth v. Bell, 871 A.2d 267, 273 (Pa. Super. 2005) (en banc)
(“[w]here the underlying encounter is found to be lawful, voluntariness
becomes the exclusive focus”).


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      `To guide the crucial inquiry as to whether or not a seizure has been

effected, the United States Supreme Court has devised an objective test

entailing a determination of whether, in view of all surrounding circumstances,

a reasonable person would have believed that he was free to leave.            In

evaluating the circumstances, the focus is directed toward whether, by means

of physical force or show of authority, the citizen-subject’s movement has in

some way been restrained. In making this determination, courts must apply

the totality-of-the-circumstances approach, with no single factor dictating the

ultimate conclusion as to whether a seizure has occurred.8

        _________________________

        8 . . . [T]here is no litmus-paper test for distinguishing a
        consensual encounter from a seizure . . .

        The test is necessarily imprecise, because it is designed to
        assess the coercive effect of police conduct, taken as a whole,
        rather than to focus on particular details of that conduct in
        isolation. Moreover, what constitutes a restraint on liberty
        prompting a person to conclude that he is not free to “leave”
        will vary, not only with the particular police conduct at issue,
        but also with the setting in which the conduct occurs.

Strickler, 757 A.2d at 889-90 (some footnotes and citations omitted; some

formatting added).

      While there is no definitive list of factors for the court to consider when

determining if a police-citizen interaction is a mere encounter, where a

reasonable person would believe that he or she is free to leave, or an

investigative detention, “[t]he presence of an express admonition to the




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J-A14038-18



effect that the citizen-subject is free to depart is a potent, objective factor

that favors such conclusion.” Id. at 899 (emphasis added).7

       In Commonwealth v. Randolph, 151 A.3d 170, 178 (Pa. Super.

2016), appeal denied, 168 A.3d 1284 (Pa. 2017), a police officer’s request for

a driver “to step out of the vehicle to the rear to receive a written warning”

before telling the driver he was free to leave did not affect the determination

that the interaction was a mere encounter after the express admonition that

the driver was allowed to depart. Other factors considered by this Court in

Randolph, in determining that the interaction after the “free to leave”

statement was a mere encounter include that the police officer “did not have

sirens on his vehicle[,]” that the “interaction” between the driver and police

was “calm and cordial[,]” and that “no physical contact” occurred.

       Whether a patrol vehicle’s flashing (“emergency”) lights are switched on

is another factor that appellate courts have considered, finding activated lights

a signal to a reasonable person that he or she was not free to leave.

Commonwealth v. Livingstone, 174 A.3d 609, 625 (Pa. 2017) (two justices

joining; three justices concurring in part, dissenting in part; one justice

____________________________________________


7 We recognize that even when a driver is told he is free to leave, subsequent
interactions may still constitute a second seizure or investigative detention,
requiring reasonable suspicion of criminal activity. Commonwealth v.
Freeman, 757 A.2d 903, 907-08 (Pa. 2000). For example, a police officer
asking a driver to “step out of the vehicle” after stating that she was “free to
leave . . . constituted a greater show of authority than had previously been
made” and was therefore a factor in determining that the interaction was an
investigative detention. Id.


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dissenting) (“a reasonable person in [a]ppellant’s shoes would not have felt

free to leave after [t]rooper . . . pulled his patrol car, with its emergency lights

activated, alongside her vehicle”; held “[a]ppellant was seized and subjected

to an investigative detention”), 638-39, 641 (all three justices concurring in

part and dissenting in part agree on issue of activation of emergency lights

elevates encounter from mere encounter to investigative detention);

Commonwealth v. Hill, 874 A.2d 1214, 1219 (Pa. Super. 2005) (among

other factors, activation of overhead lights weighed towards encounter being

seizure and not mere encounter). Officers blocking a defendant’s vehicle from

moving has also been found to constitute a seizure, raising an encounter to

an investigative detention.        Commonwealth v. Greber, 385 A.2d 1313,

1315-16 (Pa. 1978) (one justice concurring; two concurring in result; one

dissenting; one recusing).         A “threatening” number of officers present and

“the display of a weapon by an officer” are also “[e]xamples of circumstances

that might indicate a seizure[.]” Commonwealth v. Guess, 53 A.3d 895,

900 (Pa. Super. 2012) (citations omitted).8

       Ultimately, the “totality of the circumstances” test is a balancing test

that allows us to weigh coercive and noncoercive factors against each other.

____________________________________________


8 Some facts that might suggest that an investigative detention had ended,
such as police returning a driver’s documents and handing over a written
warning, may still be insufficient to reach such a conclusion, when other
factors overwhelm them, such as the presence of multiple officers surrounding
the vehicle and repeated questioning by an officer. Commonwealth v.
Sierra, 723 A.2d 644 (Pa. 1999) (equally divided court).


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See Commonwealth v. Moyer, 954 A.2d 659, 668 (Pa. Super. 2008) (en

banc).    For example, in Moyer, this Court found that multiple elements

“support[ed] the belief that [the defendant] could not refuse the officer’s

requests for more information and to search his car[,]” including: that the

officer   reintroduced   questioning   “within   seconds”   after   returning   the

defendant’s documents; that “[t]here were two armed, uniformed police

standing near” the defendant, “who was alone and isolated outside his car” at

night on a rural, unlit road; that “[p]olice had activated . . . their red and blue

flashing lights”; that police had initiated the traffic stop; that the officer

stopped the defendant as he was walking from the rear of his vehicle back to

the driver’s side door; and that the defendant was not informed that he did

not have to answer further questions. Id. at 664, 667-68.

      Nevertheless, other facts indicated that only a mere encounter occurred

when the officer asked the defendant if there were any controlled substances

or paraphernalia in his car or on his person and requested to search the

defendant’s vehicle, including that the officer had already told the defendant

that he was free to leave and that the officer did not use a coercive tone nor

display his firearm.      Id.    This Court held that the former elements

“outweigh[ed]” the latter facts and that, when the defendant gave his consent,

the interaction still constituted an investigative detention. Id. at 667.

      Here, considering the totality of the circumstances, we conclude that, at

the time that Appellee agreed to the search of his vehicle, in view of all




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J-A14038-18



surrounding circumstances, a reasonable person would have believed that he

was free to leave. See Strickler, 757 A.2d at 889-91.

      The most “potent, objective factor” in reaching this conclusion is that

Officer Dalbey informed Appellee that he was “free to leave.” Strickler, 757

A.2d at 899; N.T., 8/22/2017, at 13; see also Moyer, 954 A.2d at 664, 667-

68 (factor weighed towards finding mere encounter).

      Although Officer Dalbey had previously asked Appellee to step outside

the vehicle and asked for permission to search the vehicle while Appellee was

still outside, the request to exit the Chrysler occurred before the officer told

Appellee that he was free to leave.       N.T., 8/22/2017, at 11; compare

Randolph, 151 A.3d at 178 (request to exit before permission to leave) with

Freeman, 757 A.2 at 907 (request to exit after permission to leave).

      Additionally, although Officer Dalbey questioned Appellee, it was only

after Appellee initiated a conversation about the officer’s police experience,

and his own father’s service as a Philadelphia police officer. The officer did

not repeatedly question Appellee.         His tone was conversational and

nonthreatening.   He had no physical contact with Appellee.       Appellee was

never placed in physical restraints at any time prior to the discovery of the

heroin. N.T., 8/22/2017, at 35, 40; see generally id.; see also Randolph,

151 A.3d at 181-82 (where none of these factors exist, interaction is mere

encounter); Moyer, 954 A.2d at 668 (no coercive tone supported finding of

mere encounter); see also Strickler, 757 A.2d at 889 (“instances of police

questioning involving no seizure or detentive aspect” – i.e. mere encounters

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– are permitted); Thomas, 179 A.3d at 82 (police questioning alone does not

constitute seizure).

      Officer Dalbey had also turned off the flashing lights in his patrol vehicle

prior to giving Appellee the warning notice, and they were still off when

Appellee agreed to the search. N.T., 8/22/2017, at 11; cf. Livingstone, 174

A.3d at 625 (activated flashing lights a signal to a reasonable person that he

or she was not free to leave and therefore subject to an investigative

detention); Moyer, 954 A.2d at 667 (activated flashing lights were a factor in

finding investigative detention and not mere encounter); Hill, 874 A.2d at

1219 (same).

      Neither Officer Dalbey’s nor Officer McVeigh’s patrol vehicles blocked

Appellee’s vehicle:    Officer Dalbey’s vehicle was behind Appellee’s; Officer

McVeigh’s vehicle was parked in a lot on a different street and could not even

be seen from Appellee’s location. N.T., 8/22/2017, at 7, 41; cf. Greber, 385

A.2d at 1315-16. Only two officers were present when Appellee agreed to the

search of the Chrysler, N.T., 8/22/2017, at 41, not a “threatening” number of

officers, and there was no testimony that either officer pulled or drew attention

to his firearm. Cf. Guess, 53 A.3d at 900 (“[e]xamples of circumstances that

might indicate a seizure”); see also Moyer, 954 A.2d at 668 (no display of

weapons weighed towards finding mere encounter). Furthermore, Appellee

chose to return to Officer Dalbey and to resume their conversation; Officer

Dalbey did not stop Appellee from returning to his vehicle. Compare N.T.,

8/22/2017, at 13-14 with Moyer, 954 A.2d at 667 (defendant walked from

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J-A14038-18



rear of car to car door when officer stopped him; element weighing towards

finding investigative detention).

      Additionally, in considering “the setting in which the conduct occur[red,]

Strickler, 757 A.2d at 890 n.8, Appellee was not alone, as he had two

passengers with him, and was not in an isolated, unlit location, since he had

pulled into the “well lit” parking lot of a minimart. Compare N.T., 8/22/2017,

at 7-8 with Moyer, 954 A.2d at 667-68 (defendant being alone in an isolated

location weighed towards finding investigative detention).

      Consequently, under the “totality of the circumstances” test we find no

evidence of any coercive factors after the conclusion of the traffic stop.

Accordingly, we find that an individual in Appellee’s situation would have

objective reasons to believe that he was free to leave and end the police-

citizen interaction. Strickler, 757 A.2d at 889-91. We conclude that, after

Officer Dalbey informed Appellee that he was free to leave, the entirety of

their subsequent interaction prior to Appellee’s grant of consent constituted a

mere encounter, making Officer Dalbey’s further questioning of Appellee

permissible without any suspicion of criminal activity. See id. at 889 (mere

encounters need not be supported by any level of suspicion in order to

maintain validity); see also Thomas, 179 A.3d at 82 (police officers

approaching citizens and asking them questions does not constitute seizure);

Bostick, 501 U.S. at 434 (same).

      Appellee suggests that if we “accept the Commonwealth’s position that

the instant case demonstrates a ‘mere encounter’ . . . the matter should be

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remanded to the trial [c]ourt for findings on” whether Appellee’s “consent to

search was ultimately freely given.” Appellee’s Brief at 11.

        However, as already noted, our standard of review is whether the trial

court legally erred, not whether it abused its discretion. Thran, 185 A.3d at

1043.      Additionally, although Appellee suggests that “[a]n additional

evidentiary hearing may also be required[,]” (Appellee’s Brief at 11), Appellee

does not specify what additional useful evidence could be ascertained at

another hearing.

        In addition, Appellee argued during the suppression hearing that his

consent was not “obtained” in a “knowing, voluntary, and intelligent manner.”

N.T., 8/22/2017, at 3. Thus, Appellee himself raised the issue of voluntary

consent. We conclude that the Commonwealth produced sufficient evidence

to establish voluntary consent in the totality of circumstances. Appellee did

not present evidence to rebut the evidence which the Commonwealth had

already produced. See Commonwealth v. Moore, 279 A.2d 179, 183 (Pa.

1971). Therefore, we do not need to remand to the trial court.

        Therefore, we will now address the issue of whether Appellee voluntarily

consented to the search of the Chrysler, based on the existing record, such

that the trial court properly granted the motion to suppress.

        “In connection with such inquiry, the Commonwealth bears the burden

of establishing that a consent is the product of an essentially free and

unconstrained choice — not the result of duress or coercion, express or




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implied, or a will overborne — under the totality of the circumstances.”

Strickler, 757 A.2d at 901.

      This analysis overlaps with the assessment of the validity of the citizen-

police interaction giving rise to the consent and also involves a totality of the

circumstances test, balancing noncoercive and coercive factors. See id. at

888-89, 901-02 (“reasons supporting the conclusion that [the defendant] was

not seized at the time that he lent his consent to the vehicle search therefore

also militate strongly in favor of a determination that his consent was

voluntary”); Commonwealth v. Valdivia, 145 A.3d 1156, 1166 (Pa. Super.

2016) appeal granted, 165 A.3d 869 (Pa. 2017) (citations and internal

quotation marks omitted) (when there is mixture of coercive and non-coercive

factors at time of [police] request to search, court must balance factors).

      For example, whether the defendant had been informed by police that

he was free to leave, whether police returned the defendant’s documentation,

whether there was “evidence of police abuses, aggressive tactics, coercive

language, coercive tone of voice, physical contact, or the use of physical

restraints at any time during the detention,” and whether the location was

open, public, and well-lighted are major factors in determining the

voluntariness of the defendant’s consent to search. Id.; see Randolph, 151

A.3d at 181-82.     Here, there is no dispute that Officer Dalbey informed

Appellee that he was free to leave. (See N.T. Hearing on Motion to Supress,

8/22/17, at 13).

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      We view the evidence presented at the suppression hearing, in the

totality of circumstances. We consider all of the noncoercive factors noted in

our analysis finding this police-citizen interaction to be a mere encounter.

These include that Officer Dalbey told Appellee that he was free to leave prior

to Appellee’s agreeing to the search, N.T., 8/22/17, at 13-14. He had returned

Appellee’s documentation. See id. at 22. He had not engaged in any abuse,

aggressive tactics, coercive language, coercive tone of voice, or physical

contact, id. at 35, or used physical restraints. See id. at 40. Accordingly, we

hold that Appellee’s consent was freely and voluntarily given and that,

consequently, Officer McVeigh’s search of Appellee’s vehicle was proper. See

Valdivia, 145 A.3d at 1166; Randolph, 151 A.3d at 181-82.

      We conclude that the drugs were legally seized from the vehicle.

Therefore, we are constrained to hold that the trial court improperly granted

Appellee’s motion to suppress. Thus, we reverse the order granting Appellee’s

suppression motion. Accordingly, we remand this case for trial.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/18



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