J-A18004-16


                                  2016 PA Super 225

IN THE INTEREST OF: A.A., A MINOR                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: A.A.
                                                        No. 1931 MDA 2015


        Appeal from the Dispositional Order Entered September 28, 2015
                In the Court of Common Pleas of Dauphin County
              Juvenile Division at No(s): CP-22-JV-0000144-2015


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

OPINION BY BENDER, P.J.E.:                            FILED OCTOBER 18, 2016

        Appellant, A.A. (a minor), appeals from the dispositional order entered

following her adjudication of delinquency on charges of driving under the

influence (DUI), possession of a controlled substance, possession of drug

paraphernalia, and a traffic violation (disregarding traffic lanes). On appeal,

Appellant solely challenges the juvenile court’s denial of her motion to

suppress evidence. After careful review, we affirm.

        The juvenile court summarized the facts and procedural history of

Appellant’s case, as follows:

              On January 9, 2015, Sergeant Christopher Still (hereinafter
        “Sergeant Still”) of the Halifax Area Regional Police Department
        was on routine traffic patrol in the area of Market and North
        Second Streets.       Sergeant Still observed a black sedan
        straddling the center yellow lines and decided to follow the
        vehicle. While following the vehicle, he conducted a check on
        the registration and found that it was expired. Sergeant Still
        then conducted a traffic stop on the vehicle based on the expired
        registration.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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              Sergeant Still testified that at the time of the traffic stop,
       he identified the driver as Appellant, and a passenger … as Kyle
       Lewis (hereinafter “Mr. Lewis”).1 When Sergeant Still requested
       the vehicle information, he observed Appellant to be confused
       and her movements to be sluggish. Appellant provided Sergeant
       Still with a driver’s license and an expired registration card, but
       failed to provide proof of financial responsibility.           While
       completing a citation for the expired registration and a warning
       for the failure to provide proof of financial responsibility,
       Sergeant Still observed Mr. Lewis making furtive movements
       around the passenger area. He also observed Mr. Lewis briefly
       open the passenger door and re-close it. Sergeant Still returned
       to the vehicle and issued Appellant the citation and warning. At
       that time, Sergeant Still testified that he smelled an odor of
       marijuana coming from the interior of the vehicle.              After
       returning Appellant’s documents, Sergeant Still bid Appellant
       goodnight and broke contact.

              Sergeant Still subsequently re-engaged Appellant and
       began to ask if there was anything illegal in the car that he
       should know about. Appellant cut him off and said “no” and then
       asked if Sergeant Still wanted to search the vehicle. Sergeant
       Still responded that he would like to search the vehicle. He
       testified that Mr. Lewis then voluntarily stated that there was a
       marijuana pipe in the car and that the two of them had smoked
       marijuana prior to driving.

              At this point, Sergeant Still had Appellant step out of the
       vehicle. Upon [her] exiting, Sergeant Still observed a light green
       pill lying on the driver’s seat. Appellant was directed to wait
       near the rear of the vehicle until back-up arrived. Mr. Lewis was
       then asked to step out of the vehicle. In conducting a pat-down
       for officer safety, Sergeant Still discovered a BB gun in Mr.
       Lewis’ waistband. Mr. Lewis was subsequently handcuffed and
       the BB gun [was] removed.

             Once Appellant and Mr. Lewis were out of the vehicle,
       Sergeant Still conducted a search of the vehicle. He recovered a
       small pill bottle in the center of the door on the passenger side
____________________________________________


1
  Sergeant Still testified that Appellant’s driver’s license informed him that
she was 17 years old at the time of the traffic stop. N.T. Suppression
Hearing, 8/6/15, at 21.



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     that contained some marijuana residue, the pill from the driver’s
     seat, and a marijuana pipe in a leopard-print case in Appellant’s
     handbag. When asked what the pill was, Appellant responded
     that it was Klonopin, and admitted to taking at least one that
     night as well. Mr. Lewis claimed that the pill bottle was his.

           Following the search of the vehicle, Sergeant Still
     administered two tasks of the field sobriety test on Appellant,
     the Horizontal Gaze Nystagmus and the one-legged stand.
     Appellant failed the one-legged stand, and provided six clues to
     impairment through the Horizontal Gaze Nystagmus test.
     Appellant was subsequently placed under arrest. While at the
     Dauphin County Booking Center, a blood test was administered
     on Appellant.

                                        …

            On April 29, 2015, a delinquency petition was filed alleging
     that [Appellant] committed the delinquent acts of DUI - Impaired
     Ability1, Unlawful Possession of a Controlled Substance2,
     Unlawful Possession of Drug Paraphernalia3, Disregard of Traffic
     Lanes4, and Driving Unregistered Vehicle5. [Appellant] filed an
     Omnibus Pre-Trial Motion to Suppress Evidence on July 20,
     2015. A suppression hearing was held before this [c]ourt on
     August 6, 2015. At the conclusion of the hearing, the [c]ourt
     directed the parties to file briefs in support of their position
     within two (2) weeks. On August 24, 2015, this [c]ourt issued
     an Order denying [Appellant’s] Motion to Suppress.
        1
            75   Pa.C.S.A. § 3802(d)(2).
        2
            35   [P.S.] § 780-113(a)(16).
        3
            35   [P.S.] § 780-113(a)(32).
        4
            75   Pa.C.S.A. § 3309(1).
        5
            75   Pa.C.S.A. § 1301(a).

            An Adjudication and Disposition Hearing was held on
     September 28, 2015. At the conclusion of the adjudication
     hearing, the [c]ourt found that Count 1 (DUI - Impaired Ability),
     Count 2 (Possession of a Controlled Substance), Count 3
     (Possession of Drug Paraphernalia), and Count 4 (Disregard
     Traffic Lanes) were substantiated.           Count 4 (Driving
     Unregistered Vehicle) was changed to DUI - Controlled
     Substance or Metabolite6.         [Appellant] was adjudicated
     delinquent and found in need of treatment, supervision, or



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J-A18004-16


     rehabilitation. She was placed on probation and her driver’s
     license was suspended for one (1) year.
        6
            75 Pa.C.S.A. § 3802(d)(1).

           [Appellant] filed a Notice of Appeal of the Order of
     September 28, 2015 adjudicating [her] delinquent….          On
     October 29, 2015, this [c]ourt directed [Appellant] to file a
     [Pa.R.A.P. 1925(b)] Concise Statement of [Errors] Complained of
     on Appeal….

Juvenile Court Opinion (JCO), 12/29/15, at 1-4 (unnumbered).

     Appellant timely complied with the court’s order to file a Rule 1925(b)

statement, and the court subsequently issued a responsive opinion. Herein,

Appellant presents one question for our review:

     Whether the [juvenile] court erred in failing to suppress evidence
     obtained as the result of an illegal detention unsupported by
     probable cause, reasonable suspicion, or any articulable basis in
     violation of the Fourth Amendment of the United States
     Constitution, and Article 1, Section 8 of the Pennsylvania
     Constitution?

Appellant’s Brief at 5 (unnecessary capitalization and emphasis omitted).

     We begin by noting our standard of review:

     When reviewing the propriety of a suppression order, an
     appellate court is required to determine whether the record
     supports the suppression court's factual findings and whether
     the inferences and legal conclusions drawn by the suppression
     court from those findings are appropriate. Where the record
     supports the factual findings of the suppression court, we are
     bound by those facts and may reverse only if the legal
     conclusions drawn therefrom are in error. However, where the
     appeal of the determination of the suppression court turns on
     allegations of legal error, the suppression court's conclusions of
     law are not binding on an appellate court, whose duty it is to
     determine if the suppression court properly applied the law to
     the facts.




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J-A18004-16



Commonwealth v. Kemp, 961 A.2d 1247, 1252–53 (Pa. Super. 2008) (en

banc) (quoting Commonwealth v. Mistler, 912 A.2d 1265, 1269–70 (Pa.

2006)) (internal citations and quotation marks omitted).

      In this case, Appellant does not contest the validity of Sergeant Still’s

initial traffic stop of her vehicle.    Rather, she presents two distinct claims

related to the sergeant’s questioning of her after he ‘broke contact’ and then

re-engaged her in questioning.         First, Appellant argues that Sergeant Still

terminated the initial traffic stop, and that his re-initiating contact with her

amounted to a second investigative detention. Second, Appellant contends

that Sergeant Still lacked reasonable suspicion to justify that second

detention. We will address each of these claims in turn.

      We begin by recognizing that the Commonwealth does not dispute that

Appellant was detained when Sergeant Still re-initiated contact with her.

See Commonwealth’s Brief at 9.             The juvenile court also agrees that

Appellant was detained throughout her interaction with Sergeant Still,

including when she gave him consent to search her vehicle. See JCO at 6

(unnumbered).

      We ascertain no legal error in the court’s conclusion that Appellant was

subjected to a second investigative detention. Sergeant Still testified at the

suppression hearing that he “issued [Appellant] [a] citation and briefly broke

contact with [her] by bidding her a good night.” N.T. Suppression Hearing




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J-A18004-16



at 7.2 Sergeant Still then “reengaged [her] in conversation and asked her …

if there was anything illegal in the car that [he] should know about.”                Id.

Sergeant Still also testified that the lights on his police cruiser were

activated throughout the entirety of his interaction with Appellant.               Id. at

21. Under these circumstances, a reasonable person in Appellant’s position

would not have believed that she was free to leave. Therefore, we conclude

that Appellant was subjected to a second investigative detention.                    See

Commonwealth v. Moyer, 954 A.2d 659, 665 (Pa. Super. 2008) (en banc)

(“[W]hen an individual has been subjected to a valid detention and the

police continue to engage that person in conversation, the citizen, having

been in an official detention, is less likely to understand that he has the right

to   refuse     to   answer   questions        or   a   search.”)   (emphasis   omitted);

Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (“[W]here

the purpose of an initial traffic stop has ended and a reasonable person

would not have believed that he was free to leave, the law characterizes a

subsequent round of questioning by the police as an investigative detention

or arrest.”).

       We must next assess whether Sergeant Still possessed reasonable

suspicion to conduct that second detention of Appellant.



____________________________________________


2
  The sergeant also stated at one point during the hearing that he told
Appellant “she was free to go[.]” N.T. Suppression Hearing at 22.



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J-A18004-16


      A police officer may detain an individual in order to conduct an
      investigation if that officer reasonably suspects that the
      individual is engaging in criminal conduct. Commonwealth v.
      Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). “This standard,
      less stringent than probable cause, is commonly known as
      reasonable suspicion.” Id. In order to determine whether the
      police officer had reasonable suspicion, the totality of the
      circumstances must be considered. In re D.M., 566 Pa. 445,
      781 A.2d 1161, 1163 (2001). In making this determination, we
      must give “due weight ... to the specific reasonable inferences
      [the police officer] is entitled to draw from the facts in light of
      his experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio,
      392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Also, the
      totality of the circumstances test does not limit our inquiry to an
      examination of only those facts that clearly indicate criminal
      conduct. Rather, “even a combination of innocent facts, when
      taken together, may warrant further investigation by the police
      officer.” Cook, 735 A.2d at 676.

Kemp, 961 A.2d at 1255 (quoting Commonwealth v. Rogers, 849 A.2d

1185, 1189 (Pa. 2004)).

      Here, in contending that Sergeant Still lacked reasonable suspicion to

justify   her   second   detention,   Appellant   relies   on   our   decision   in

Commonwealth v. Nguyen, 116 A.3d 657 (Pa. Super. 2015).                   In that

case, a three-judge panel of this Court stated that “[w]here the investigative

detention at issue follows a lawful traffic stop, the officer must demonstrate

cause for suspicion after the end of the initial stop, and independent of any

basis on which he conducted the prior stop.”       Id. at 668 (quoting Jones,

874 A.2d at 117). Appellant avers that under this rule, Sergeant Still was

required to formulate new reasonable suspicion - based on facts and

circumstances wholly separate from anything that he observed during the

traffic stop - to justify her second detention. Because Sergeant Still did not



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J-A18004-16



articulate any new facts learned, or observations made, in the time-period

between when he terminated the traffic stop and when he re-engaged

Appellant, she maintains that he lacked reasonable suspicion to support the

second detention.

       In response, the Commonwealth argues that our reasonable suspicion

assessment must include all of the facts and circumstances known to

Sergeant Still, including his observations made before he terminated the

traffic stop.   In support of its position, the Commonwealth relies on this

Court’s en banc decision in Kemp.              Briefly, in that case, a state trooper

stopped a vehicle driven by Kandice Kyles, and in which Kemp was a

passenger. Kemp, 961 A.2d at 1250. During the course of the stop, the

trooper made various observations that, based on his experience, led him to

suspect that Kemp and Kyles were trafficking narcotics.3 Id. at 1251. At

several points throughout the interaction, the trooper told Kyles and/or

Kemp that they were free to leave, but then re-initiated contact and

questioned them.          Id. at 1251-52.          Ultimately, after one such re-

engagement, Kemp gave the trooper consent to search the car, which

revealed a large quantity of marijuana in the trunk. Id. at 1252.



____________________________________________


3
  For instance, the trooper observed that the vehicle contained numerous
“masking agents” like air fresheners; Kemp and Kyles exhibited “evasive”
behavior; and the trooper smelled an “odor of marijuana” emanating from
inside the car. Kemp, 961 A.2d at 1251.



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J-A18004-16



      On appeal from the suppression court’s denial of Kemp’s motion to

suppress, this Court first concluded that Kemp had been subjected to an

investigative detention prior to providing consent to search the vehicle. Id.

at 1254. We then addressed Kemp’s argument “that once [the trooper] told

Kyles and [Kemp] that they were free to leave, any facts garnered during

the course of the valid vehicular stop could not be used to justify the

continued detention.” Id. at 1255. We began our assessment of this claim

by acknowledging that Kemp’s argument was supported by our prior

decisions in Commonwealth v. Ortiz, 786 A.2d 261 (Pa. Super. 2001), and

Commonwealth v. Johnson, 833 A.2d 755 (Pa. Super. 2003), a case

which applied Ortiz.    The Kemp panel summarized that, under Ortiz and

Johnson, “the current law in Pennsylvania provides that once a police

officer informs a defendant that he is free to leave after completing a valid

traffic stop, any facts ascertained during that initial traffic stop are nullified

and may not be utilized to support a continued detention, even if the facts

discovered during the processing of the traffic stop support the existence of

reasonable suspicion that the defendant is engaging in illegal activity.”

Kemp, 961 A.2d at 1257.

      However, the en banc Kemp panel went on to expressly overrule

Ortiz and Johnson, concluding that the rule applied in those cases was

“improper for two distinct reasons.” Id. at 1258. We explained:

            First, it is simply analytically inconsistent for a defendant
      to argue that “free-to-go” language does not step down the
      police interdiction from a seizure to a mere encounter, but that if

                                      -9-
J-A18004-16


        an officer does utter those words, all facts ascertained lawfully
        by the police officer during the traffic stop are erased for
        purposes of analyzing whether the continued detention was
        permissible. If the seizure achieved through the traffic stop
        never ended, and if thereby the defendant remained subject to a
        continuing detention when the traffic infraction was processed,
        then there is no reason why the facts observed by the officer
        during the constitutionally-proper traffic stop cannot be used to
        justify the continuation of the detention. If it is a continuing
        detention for the defendant, despite the free-to-go language,
        then by the same logic, it is a continuing detention for purposes
        of the police investigation.

              Additionally, we believe that the approach adopted by
        Ortiz conflicts with appropriate constitutional analysis. “When
        discussing how reviewing courts should make reasonable-
        suspicion determinations, we have said repeatedly that they
        must look at the ‘totality of the circumstances’ of each case to
        see whether the detaining officer has a ‘particularized and
        objective basis’ for suspecting legal wrongdoing.” United States
        v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740
        (2002)…. A totality-of-the-circumstances approach allows the
        court to consider all facts at the officer’s disposal and does not
        require the court to disregard those adduced during a valid
        interdiction, which is, in the present case, the traffic stop.
        Indeed, routine constitutional analysis requires courts to utilize
        facts gathered during each escalating phase of a police
        investigation in determining whether police acted properly as the
        interaction between police and citizen proceeded towards an
        arrest.

Kemp, 961 A.2d at 1258-59 (some citations omitted).

        We also noted in Kemp that “the Ortiz position has not been accepted

in the federal system.”       Id. at 1260; see also id. at 1259-60 (discussing

three    federal   circuit   court   decisions    that   rejected   the   Ortiz   rule).

Additionally, we stressed in Kemp that the Ortiz rule was not supported by

our Supreme Court’s reasoning in Commonwealth v. Freeman, 757 A.2d

903 (Pa. 2000), the case on which Ortiz relied. The Kemp panel explained



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J-A18004-16



that “Freeman does not hold that facts garnered during a constitutionally-

proper traffic stop cannot be utilized in assessing whether reasonable

suspicion exists for a detention that continues after the reason for the traffic

stop has been resolved.” Kemp, 961 A.2d at 1257. Rather, we explained in

Kemp that,

      [t]he Supreme Court in Freeman quite plainly stated that in
      order to justify a continued detention beyond the initial valid
      detention, which was the traffic stop, police needed reasonable
      suspicion that the defendant was engaged in criminal activity
      independent of that initial lawful detention. In other words, once
      police process the traffic violation, they cannot rely upon the
      traffic violation to prolong the detention; they need other
      information supporting reasonable suspicion.

            In Freeman, no facts were ascertained during the traffic
      stop or thereafter to provide reasonable suspicion that the
      defendant was involved in criminal activity. The Court did not
      imply that anything discovered during the course of a traffic stop
      could not be utilized to justify an ensuing investigatory
      detention. Indeed, the Court actually analyzed what police were
      told during the traffic stop, which would imply, contrary to the
      holding in Ortiz, that those facts can be considered in
      determining whether reasonable suspicion existed for an
      investigatory detention initiated after a vehicular violation has
      been processed.

Kemp, 961 A.2d at 1258 (emphasis in original).

      For all of these reasons, the Kemp panel “overrule[d] Ortiz and

Johnson to the extent that they hold that facts gathered during a valid

traffic stop cannot be utilized to justify an investigatory detention occurring

after a police officer has indicated that a defendant is free to leave.” Id. at




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J-A18004-16



1260. Thus, Kemp explicitly precludes this Court from applying the type of

limited reasonable suspicion analysis that Appellant advocates. 4 Instead, in

situations where an officer ends a lawful traffic stop, but then re-initiates an

investigative detention of an occupant of that vehicle, we apply the ‘totality

of the circumstances’ test to assess whether the officer possessed

reasonable suspicion. See Kemp, 961 A.2d at 1260. Under that test, the

officer’s reasonable suspicion to conduct the subsequent detention may be

premised on facts gathered during the valid traffic stop, id. at 1258,

although the officer cannot solely rely “upon the initial traffic violation to

prolong the detention; they need other information supporting reasonable

suspicion.”      Id. at 1260 (clarifying our Supreme Court’s holding in

Freeman).
____________________________________________


4
   To the extent that the case on which Appellant relies, Nguyen, can be
interpreted as applying the type of limited reasonable suspicion assessment
struck down in Kemp, we are clearly bound to follow the en banc decision in
Kemp, rather than the three-judge panel decision in Nguyen. We also note
that the Nguyen panel did not distinguish Kemp, or cite any decision by the
United States Supreme Court, the Pennsylvania Supreme Court, or an en
banc panel of this Court that could be interpreted as overruling or abrogating
Kemp. Rather, the only decision relied upon by the Nguyen panel was this
Court’s three-judge panel decision in Jones. See Nguyen, 116 A.3d at 668
(quoting Jones, 874 A.2d at 117). However, Jones was decided prior to
Kemp, and also applied an interpretation of Freeman that was expressly
renounced by the Kemp panel. Accordingly, Appellant’s reliance on Nguyen
is misplaced and we are bound to follow Kemp.




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J-A18004-16



       Applying the totality-of-the-circumstances test in the present case, we

conclude that Sergeant Still possessed reasonable suspicion to conduct the

second detention of Appellant.             Aside from the traffic violations that

compelled Sergeant Still to conduct the traffic stop, the sergeant observed,

during the course of the stop, that Appellant appeared “confused and her

movements were sluggish.” N.T. Suppression Hearing at 5. When Sergeant

Still returned to his vehicle to process the paperwork supplied by Appellant,

he “noticed that the passenger, Mr. Lewis, was making furtive movements

around the passenger area compartment of the vehicle and [Mr. Lewis] also

had opened up the passenger door briefly and re-closed it.” Id. at 6. When

the sergeant returned to the driver’s side window of Appellant’s car, he

“smelled an odor of marijuana coming from the interior of the vehicle.” Id.

at 7. Upon smelling the marijuana, Sergeant Still suspected that Appellant

and Mr. Lewis may have been “smoking marijuana in the vehicle and

driving[,]” which constituted the criminal offense of “impairment behind the

wheel” or, in other words, DUI.          Id. at 14.   Based on these facts, it was

reasonable for Sergeant Still to suspect that Appellant was engaged in

criminal activity.5 Therefore, Appellant’s detention was legal.6
____________________________________________


5
  Appellant does not argue that these facts failed to provide Sergeant Still
with reasonable suspicion; rather, she only contends that Nguyen limits the
facts we may consider in assessing whether reasonable suspicion existed.
6
 Appellant does not challenge the voluntariness of her consent to search her
vehicle, other than to claim that her consent was given during an illegal
(Footnote Continued Next Page)


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J-A18004-16



      Dispositional order affirmed.

      President Judge Emeritus Ford Elliott joins this opinion.

      President Judge Emeritus Stevens files a concurring opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




                       _______________________
(Footnote Continued)

detention. Because that claim is meritless, we need not assess the validity
of her consent to search.



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