J-A15026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                      Appellant           :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 BRANT N. GIVLER                          :   No. 1996 MDA 2017

             Appeal from the Order Entered December 7, 2017
  In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0005883-2017

BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                              FILED JULY 30, 2018

      The Commonwealth of Pennsylvania (Commonwealth) appeals from the

order granting Appellee Brant N. Givler’s suppression motion. For the reasons

that follow, we affirm.

      The trial court summarized the facts presented at the suppression

hearing as follows:

          [Officer Mark Jackson (Officer Jackson)] testified that close to
      midnight on June 20, 2017, he observed a Chevrolet pickup truck
      parked in the middle of a private parking lot adjacent to Long Level
      Road, north of the Dock 2 Boat Ramp in York County,
      Pennsylvania. Officer Jackson stated that he had driven past that
      location while on patrol an hour and a half earlier and had not
      observed the vehicle. Officer Jackson approached the vehicle and
      observed [Appellee] asleep in the driver seat, with the window
      rolled down, and the radio on. The officer observed the keys of
      the pickup truck to be in the ignition[,] but the engine was not
      running. [Appellee] had a bottle of Yuengling Beer in between his
      lap.

        After Officer Jackson approached the vehicle, he attempted to
      wake [Appellee]. Once awake, Officer Jackson observed signs of
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       impairment. Officer Jackson stated [Appellee] told him he had
       bought a six-pack of beer from the River Beverage in Wrightsville,
       Pennsylvania, around 7 p.m. that evening.         Officer Jackson
       testified that [Appellee] told Officer Jackson that he began
       drinking the six-pack of beer shortly after he purchased it and
       then took his dog to a park in Wrightsville and then drove to the
       boat ramps around 10 p.m. that night. Subsequently, upon
       further investigation by Officer Jackson, [Appellee] was arrested
       on suspicion of [driving under the influence of alcohol (DUI)].
       [Appellee] was then taken to [c]entral [b]ooking where he was
       read an updated DL-26B form and consented to a blood draw.

Trial Court Opinion, 12/7/17, at 3-5 (record citations omitted).

       Appellee was charged with DUI – general impairment and DUI – high

rate of alcohol.1 On November 6, 2017, Appellee filed a pre-trial motion to

suppress in which Appellee argued that his arrest for DUI and subsequent

blood draw were unconstitutional. On November 22, 2017, the trial court held

a hearing on Appellee’s suppression motion. On December 7, 2017, the trial

court granted Appellee’s motion concluding that Officer Jackson did not

possess probable cause to arrest Appellee for DUI.        See id. at 5.     The

Commonwealth timely appealed to this Court.2 Both the trial court and the

Commonwealth have complied with Rule 1925 of the Pennsylvania Rules of

Appellate procedure.

       On appeal, the Commonwealth presents the following issue for review:


____________________________________________


1   75 Pa.C.S.A. § 3802(a)(1), (b).

2  The Commonwealth certified that the trial court’s December 7, 2017 order
would terminate or substantially handicap the prosecution of this criminal
offense pursuant to Rule 311(d) of the Pennsylvania Rules of Appellate
Procedure.

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       Did the suppression court err in suppressing the evidence obtained
       as a result of Officer [] Jackson’s interaction with [Appellee] where
       the interaction was a mere encounter requiring no level of
       suspicion, the mere encounter gave rise to reasonable suspicion
       for Officer Jackson to conduct an investigatory detention, and, as
       a result of the lawful interaction, Officer Jackson gained probable
       cause to arrest [Appellee]?

Commonwealth’s Brief at 4.

       The standard of review for addressing a trial court’s order granting a

suppression motion is as follows:

       When the Commonwealth appeals from a suppression order, we
       follow a clearly defined standard of review and 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. The suppression court’s
       findings of fact bind an appellate court if the record supports those
       findings. The suppression court’s conclusions of law, however, are
       not binding on an appellate court, whose duty is to determine if
       the suppression court properly applied the law to the facts.

Commonwealth v. Vetter, 149 A.3d 71, 75 (Pa. Super. 2016), appeal

denied, 169 A.3d 577 (Pa. 2017) (quotations and citations omitted).

       “The Fourth Amendment of the Federal Constitution and Article I,

Section   8   of   the   Pennsylvania    Constitution    protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). “To secure the right of citizens to be free from

such   [unreasonable]      intrusions,   courts   in    Pennsylvania   require    law

enforcement officers to demonstrate ascending levels of suspicion to justify

their interactions with citizens as those interactions become more intrusive.”

Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa. Super. 2007). Courts in


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this Commonwealth have recognized three types of interactions between the

police and a citizen:   a mere encounter, an investigative detention, and a

custodial detention.

      A mere encounter between police and a citizen need not be
      supported by any level of suspicion, and carr[ies] no official
      compulsion on the part of the citizen to stop or to respond. An
      investigatory stop, which subjects a suspect to a stop and a period
      of detention . . . requires a reasonable suspicion that criminal
      activity is afoot. A custodial search is an arrest and must be
      supported by probable cause.

Commonwealth v. Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017).

      This Court has explained, that when determining whether an interaction

is a mere encounter versus an investigative detention,

      the focus of our inquiry is on whether a seizure of the person has
      occurred. Within this context, our courts employ the following
      objective standard to discern whether a person has been seized:
      [w]hether, under all the circumstances surrounding the incident
      at issue, a reasonable person would believe he was free to leave.
      Thus, a seizure does not occur simply because a police officer
      approaches an individual and asks a few questions.

Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010) (citations,

quotation marks, and ellipses omitted). In 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.”   Commonwealth v. Mackey, 177 A.3d 221, 227 (Pa. Super.

2017) (quotations and citations omitted).

      The Commonwealth argues that Officer Jackson’s interaction with

Appellee began as mere encounter and that upon discovering Appellee asleep


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in his vehicle with a bottle of beer between his legs, appropriately investigated

Appellee for DUI. The Commonwealth asserts that through this investigation,

Officer Jackson developed the probable cause necessary to arrest Appellee for

DUI.

       The Commonwealth’s argument, much of which is devoted to its claim

that Officer Jackson’s interaction with Appellee began as a mere encounter,

largely misses the mark. The suppression hearing transcript reflects that the

trial court agreed with the Commonwealth that the interaction started as a

mere encounter. N.T., 11/22/17, at 33. The trial court had no issue with

Officer Jackson checking on Appellee’s vehicle when it was parked late at night

in a parking lot the officer reasonably believed to be closed to the public at

the time of night. Id. Thus, whether or not the interaction began as a mere

encounter had no bearing on the trial court’s decision.

       Rather, the trial court concluded that Officer Jackson did not have

probable cause to arrest Appellee for DUI. Probable cause exists “where the

facts and circumstances within the officers’ knowledge are sufficient to

warrant a person of reasonable caution in the belief that an offense has been

or is being committed.” Commonwealth v. Stultz, 114 A.3d 865, 883 (Pa.

Super. 2015) (quotations and citations omitted).        “We evaluate probable

cause by considering all relevant facts under a totality of circumstances

analysis.” Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007).




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        Officer Jackson arrested Appellee for suspicion of DUI under Section

3802(a)(1) of the Motor Vehicle Code.        Section 3802(a)(1) prohibits an

individual from “driving, operating, or in actual physical control of the

movement of a vehicle during the time when he or she was rendered incapable

of safely doing so due to the consumption of alcohol. Commonwealth v.

Teems, 74 A.3d 142, 145 (Pa. Super. 2013) (quotations and citation omitted).

The trial court found that there was no evidence that Appellee exercised

control over his vehicle while he was intoxicated. Trial Court Opinion, 12/7/17,

at 5.

        We agree. The record reflects that around 10:30 p.m. on the night in

question Officer Jackson drove by the parking lot at issue, which was empty

at that time.    N.T., 11/22/17, at 7.   Officer Jackson stated that when he

returned approximately an hour-and-a-half later, he observed Appellee’s truck

parked in the middle of the lot. Id. at 6. When Officer Jackson approached

Appellee’s vehicle, he noticed that the engine was off, the keys were in the

ignition, the radio was on, and Appellee was asleep with a single bottle of beer

in his lap. Id. at 7-8. Officer Jackson testified that when he woke Appellee

and began to question him, Appellee told that he bought a six-pack of beer at

around 7:00 p.m. that evening and that he began drinking shortly after he

purchased it. Id. at 9-10. Appellee then told Officer Jackson that he took his

dog to the park and then drove to the boat docks. Id. at 10.




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       These facts, in particular that Appellee was sitting intoxicated in a

parked vehicle with the engine off, do not support a conclusion that Officer

Jackson reasonably believed Appellee was in actual physical control over his

vehicle while intoxicated. As this Court has explained,

       A brief review of the cases which considered the concepts of actual
       physical control reveals that, at a very minimum, a parked car
       should be started and running before a finding of actual physical
       control can be made. See, e.g., Commonwealth v. Bobotas,
       [] 588 A.2d 518 ([Pa. Super.] 1991) (car running with defendant
       in parked car); Commonwealth v. Kloch, [] 327 A.2d 375 ([Pa.
       Super.] 1974) (automobile parked, lights on, engine running,
       driver asleep behind steering wheel); [Com., Dep’t of Transp.]
       v. Farner, [] 494 A.2d 513 ([Pa. Cmwlth.] 1985) (engine running,
       transmission in park, brake lights on, person behind wheel with
       hands on steering wheel); Commonwealth v. Kallus, [] 243
       A.2d 483 ([Pa. Super.] 1968) (car immobile in snow bank, engine
       running).

Commonwealth v. Price, 610 A.2d 488, 490 (Pa. Super. 1992).

       Moreover, the testimony indicating that Appellee admitted that he began

drinking earlier in the evening does not establish that he operated his vehicle

while intoxicated. Noticeably missing from Officer Jackson’s testimony was

any evidence as to the amount of alcohol consumed by Appellee throughout

the evening.3 There was also no evidence presented indicating when Appellee

last consumed alcohol or whether he consumed alcohol in close proximity to

the time he drove to the boat docks. Furthermore, there was no evidence



____________________________________________


3 We note that the Commonwealth asserts that Officer Jackson observed an
empty six-pack of beer in Appellee’s vehicle. Commonwealth’s Brief at 18.
There is, however, no evidence of record supporting this assertion.

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indicating the amount of alcohol he consumed out of the bottle that Officer

Jackson observed in Appellee’s lap.

     As the trial court explained, the facts were “too tenuous to establish”

that Officer Jackson reasonably believed Appellee had operated his vehicle

while under the influence of alcohol. See Trial Court Opinion, 12/7/17, at 5.

Accordingly we conclude that the trial court did not err in determining that

Officer Jackson lacked probable cause to arrest Appellee for DUI.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/30/2018




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