J-A22016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ALEC JOSEPH HENRY

                        Appellant                  No. 2223 MDA 2015


        Appeal from the Judgment of Sentence November 24, 2015
          In the Court of Common Pleas of Cumberland County
           Criminal Division at No(s): CP-21-CR-0003175-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                     FILED NOVEMBER 01, 2016

     Appellant, Alec Joseph Henry, appeals from the judgment of sentence

entered after he was convicted of driving under the influence of alcohol.

Henry contends that the trial court erred in concluding that the arresting

officer had reasonable suspicion when he effectuated an investigatory

detention. After careful review, we agree with Henry and therefore reverse

the suppression order and vacate the judgment of sentence.

     The essential facts of this case are not disputed. Henry and a female

friend were parked in a restaurant’s parking lot. The arresting officer was

driving through the parking lot when he noticed Henry and his friend switch

seats, such that Henry was now in the driver’s seat.

     The officer testified that he found this behavior to be suspicious, and

thus drove by the parked car slowly enough to peer inside Henry’s vehicle.
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He saw the top half of a red, white, and blue can sitting in the center console

cup holder. For reasons the officer could not articulate, he believed it to be a

beer can, although he could not see if the can was open.

      The officer did not approach the parked car to interact with Henry and

gain more information. Instead, the officer stopped by the exit of the

parking lot, and stopped Henry as he attempted to drive his vehicle away.

Henry was subsequently found guilty of driving under the influence of

alcohol and this timely appeal followed.

      On appeal, Henry argues that the trial court erred in denying his pre-

trial motion to suppress evidence gained from the stop of his vehicle.     Our

standard of review of the denial of a motion to suppress evidence is as

follows:

      [An appellate court’s] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to
      determining whether the suppression court’s factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. Because the Commonwealth
      prevailed before the suppression court, we may consider only
      the evidence of the Commonwealth and so much of the evidence
      for the defense as remains uncontradicted when read in the
      context of the record as a whole. Where the suppression court’s
      factual findings are supported by the record, [the appellate court
      is] bound by [those] findings and may reverse only if the court’s
      legal conclusions are erroneous. Where … 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 [the] 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 [trial court are] subject to …
      plenary review.




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Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super. 2012)

(citations omitted). As noted previously, the essential facts of the stop are

not in dispute. We therefore turn to the trial court’s legal conclusions arising

from the testimony presented at the suppression hearing.

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

Section   8   of   the   Pennsylvania    Constitution   protect   citizens   from

unreasonable searches and seizures. See Commonwealth v. Carter, 105

A.3d 765, 768 (Pa. Super. 2014) (en banc), appeal denied, 117 A.3d 295

(Pa. 2015). “To secure the right of citizens to be free from ... [unreasonable

searches and seizures], 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. Beasley, 761 A.2d 621, 624 (Pa. Super. 2000) (citation

omitted). Our Supreme Court has defined three levels of interaction between

citizens and police officers: (1) a mere encounter, (2) an investigative

detention, and (3) a custodial detention. See Commonwealth v. Fuller,

940 A.2d 476, 478 (Pa. Super. 2007).

      A mere encounter between a police officer and a citizen does not need

to be supported by any level of suspicion and “carr[ies] no official

compulsion on the part of the citizen to stop or respond.” Id., at 479

(citation omitted). There is no constitutional provision that prohibits police




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officers from approaching a citizen in public to make inquiries of them. See

Beasley, 761 A.2d at 624.

      Here, the Commonwealth concedes that the arresting officer’s stop of

Henry’s vehicle constituted an investigatory detention. See Commonwealth’s

Brief, at 7 n. 4. Thus, the arresting officer needed reasonable suspicion that

a crime was being committed in order to lawfully stop Henry.

       “[T]o establish grounds for reasonable suspicion, the officer must

articulate specific observations which, in conjunction with reasonable

inferences derived from those observations, led him reasonably to conclude,

in light of his experience, that criminal activity was afoot and that the person

he stopped was involved in that activity.” Commonwealth v. Reppert, 814

A.2d 1196, 1204 (Pa. Super. 2002) (en banc) (citation omitted). “Therefore,

the fundamental inquiry of a reviewing court must be an objective one,

namely, whether the facts available to the officer at the moment of the

[intrusion] warrant a man of reasonable caution in the belief that the action

taken was appropriate.” Id. (internal quotation marks and citation omitted;

brackets in original).

      The arresting officer testified that as he drove by and looked into

Henry’s vehicle, he saw the “top half of a can” inside the center console of




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the vehicle. N.T., Suppression Hearing, 5/29/15, at 11.1           The can was

colored red, white, and blue. See id., at 11-12. He thought it looked like a

beer can. See id., at 12.

       However, he admitted that he was not sure it was a beer can. See id.,

at 32. “It could have been a soda or a pop can as well.” Id. The arresting

officer could not determine whether the can was open. See id. He was also

concerned that Henry’s female passenger appeared to be under 21. See id.

Furthermore, he stated that it would not have been a crime for Henry to

have an unopened beer can in his vehicle. See id., at 31.

       The arresting officer “had the thought process in [his] mind that [he]

was going to make a further inquiry about [the can].” Id., at 29. However,

he did not get out of his car to go ask Henry while Henry was still parked.

See id. Instead, he pulled his patrol car into a position to stop Henry as he

attempted to drive out of the parking lot. See id., at 12.

       Under these circumstances, we cannot conclude that the arresting

officer’s testimony articulated specific observations that justified his action in

initiating an investigative detention. The testimony establishes nothing more
____________________________________________


1
   The transcript of the suppression hearing is included in the reproduced
record, but is not in the certified record. This Court has, under certain
circumstances, overlooked an omission of material from the certified record
when it could be found in the reproduced record. See, e.g., Stewart v.
Owens-Corning Fiberglas, 806 A.2d 34, 37 n.3 (Pa. Super. 2002). See
also Pa.R.A.P. 1921 Note. The Commonwealth has not disputed the
authenticity of the transcript in the reproduced record, and we will therefore
consider it in the disposition of this issue.



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than that the officer had a hunch that there was a beer can in Henry’s

vehicle. He did not know if it was open. He had an opportunity to walk up to

Henry’s parked car to make further observations, which would have been

legal, but instead waited until Henry started his vehicle and attempted to

drive out of the parking lot. His stop of Henry’s vehicle without reasonable

suspicion was unlawful. Thus, we cannot conclude that the arresting officer’s

actions were objectively reasonable under the circumstances. The trial court

erred in so concluding. We therefore reverse the suppression order.

      Suppression order reversed. Judgment of sentence vacated. Case

remanded for proceedings consistent with this memorandum. Jurisdiction

relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2016




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