J-A29016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

COLIN LINNEN

                        Appellee                     No. 637 WDA 2013


              Appeal from the Order entered March 19, 2013,
           in the Court of Common Pleas of Allegheny County,
           Criminal Division, at No(s): CP-02-CR-0016899-2008


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                      FILED NOVEMBER 06, 2014

     The Commonwealth appeals from the order entered by the Allegheny

County Court of Common Pleas granting the suppression motion of Appellee,

Colin Linnen (“Linnen”). We are constrained to reverse and remand.

     The facts may be summarized as follows:         On September 10, 2008,

Officers Ian Lucas and Ryan Coll of the Allegheny County Housing Authority

Police were on patrol in Clairton, Pennsylvania, at around 10:00 a.m., when

they drove past Linnen, who was standing in front of Building 17 of the

Millvue Acres housing development. N.T., 07/02/12, at 4-6. Officer Lucas

was familiar with Linnen from previous encounters with him.        Id.   The

officers turned their police vehicle around and approached Linnen, who had

begun to walk away. Id. at 4-6, 15. The officers exited their police vehicle




* Retired Senior Judge assigned to Superior Court.
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and approached Linnen, who had stopped walking and was standing with his

hands in his pockets. Id. at 7, 16-17. When the officers were approximately

five to ten yards from Linnen, Officer Lucas said to Linnen “What is up,

Colin” to which Linnen responded, “What is up, Lucas.”       Id. at 7.   Officer

Lucas asked Linnen what he was doing at that location since Linnen did not

live in the area, and Linnen responded that he was visiting his family. Id.

Officer Lucas noticed that Linnen was nervous, and that he kept his hands in

his pockets during the encounter.     Id. at 8.     Officer Lucas then said to

Linnen, “Colin, the last time I dealt with you, you had a little bit of weed on

you. Got anything illegal now?”, to which Linnen did not respond, although

he became tense, put his head down, and clenched his fists inside his

pockets. Id. Officer Lucas again asked Linnen if he had anything illegal on

him, to which Linnen responded “yeah, I got a little bit of weed” and pulled a

baggie out of his pocket, and handed it to the officer. Id. at 9. Officer Lucas

removed his handcuffs from his belt and told Linnen that he was under

arrest, whereupon Linnen fled.        Id. at 8-9.      Linnen was eventually

apprehended, and after a struggle with police, he was taken into custody.

Id. at 10. Once in custody, Linnen was subjected to a search which yielded

11.34 grams of crack cocaine and $309 in U.S. currency. Id. Linnen was

charged with possession with intent to deliver, possession, resisting arrest,

and disorderly conduct.




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       On June 6, 2012, Linnen filed a pre-trial suppression motion.

Following a hearing on July 2, 2012, the trial court granted Linnen’s motion.

This appeal followed.1

       The Commonwealth raises the following issues on appeal:

       I.     Whether the [trial] court erred in finding that the
              interaction between [Linnen] and the police constituted an
              investigatory detention rather than a mere encounter?

       II.    Whether the [trial court] erred in finding that Miranda
              warnings were required during a non-custodial encounter
              on a public walkway which lasted less than a minute?

Commonwealth Brief at 4.

       When reviewing a Commonwealth appeal from the grant of a

suppression motion, “[w]e begin by noting that where a motion to suppress

has been filed, the burden is on the Commonwealth to establish by a

preponderance of the evidence that the challenged evidence is admissible.

In reviewing the ruling of a suppression court, our task is to determine

whether the factual findings are supported by the record.       If so, we are

bound by those findings.”        Commonwealth v. Burgos, 64 A.3d 641 (Pa.

Super. 2013) quoting Commonwealth v. Powell, 994 A.2d 1096, 1101

(Pa. Super. 2010) (citations omitted).

       When the Commonwealth appeals from a suppression order, this
       Court may consider only the evidence from the defendant's
____________________________________________


1
  The Commonwealth certified in its notice of appeal that the trial court’s
order “would terminate or substantially handicap the prosecution.” Pa.R.A.P.
311(d).



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      witnesses together with the evidence of the prosecution that,
      when read in the context of the record as a whole, remains
      uncontradicted.       In our review, we are not bound by the
      suppression court's conclusions of law, and we must determine if
      the suppression court properly applied the law to the facts. We
      defer to the suppression court's findings of fact because, as the
      finder of fact, it is the suppression court's prerogative to pass on
      the credibility of the witnesses and the weight to be given to
      their testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014). “It is

within the suppression court's sole province as factfinder to pass on the

credibility of witnesses and the weight to be given to their testimony. The

suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citations omitted). “We are bound by the

suppression court's factual findings, if supported by the record; however, the

question presented—whether a seizure occurred—is a pure question of law

subject to plenary review.”    Commonwealth v. Lyles, 97 A.3d 298, 302

(Pa. 2014).

      Here, the Commonwealth challenges the trial court’s determination

that Officer Lucas’ and Officer Coll’s initial interaction with Linnen constituted

an investigative detention; the Commonwealth contends that the initial

interaction   with   Linnen   was   a   mere    encounter,   “raising   no   Fourth

Amendment concerns.” Commonwealth Brief at 11-17.

      In Pennsylvania, there are three categories of interaction between the

police and members of the public:              1) mere encounters, which are


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characterized by the fact that the suspect has no official compulsion to stop

or respond to the police, and which need not be supported by any level of

suspicion; 2) investigative detentions, in which suspects are required to stop

and submit to a period of detention, but are not subject to such coercive

conditions to qualify as an arrest, and which must be supported by

reasonable suspicion; and 3) arrests, or custodial detentions, which must be

supported by probable cause. Commonwealth v. Astillero, 39 A.3d 353,

357-358 (Pa. Super. 2012).

            To determine whether a mere encounter rises to the level
      of an investigatory detention, we must discern whether, as a
      matter of law, the police conducted a seizure of the person
      involved. To decide whether a seizure has occurred, a court
      must consider all the circumstances surrounding the encounter
      to determine whether the demeanor and conduct of the police
      would have communicated to a reasonable person that he or she
      was not free to decline the officer's request or otherwise
      terminate the encounter. Thus, the focal point of our inquiry
      must be whether, considering the circumstances surrounding the
      incident, a reasonable person innocent of any crime would have
      thought he was being restrained had he been in the defendant's
      shoes.

Commonwealth v. Collins, 950 A.2d 1041, 1046-1047 (Pa. Super. 2008)

quoting Commonwealth v. Reppert, 814 A.2d 1196, 1201–1202 (Pa.

Super. 2002). See also Commonwealth v. Au, 42 A.3d 1002, 1004 (Pa.

2012).

      Officer Lucas testified about his interaction with Linnen as follows:

      Assistant District Attorney:         On the day in question, when you
                                           saw [Linnen], what was he doing?




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     Officer Lucas:                       He was standing in front of the 17
                                          building of Marion Circle or Millvue
                                          Acres.

     Assistant District Attorney:         Did you approach him?

     Officer Lucas:                       We turned our marked patrol car
                                          around, then we got out of our car,
                                          approached him.

     Assistant District Attorney:         So you approached on foot?

     Officer Lucas:                       Yes, we did.

     Assistant District Attorney;         And when you walked up to him,
                                          what did he do?

     Officer Lucas:                       He was just standing there with his
                                          hands in his pockets, just standing
                                          there.

                                           ***

     Officer Lucas:                       I said: What is up, Colin. ... He
                                          said: what is up, Lucas. ... I said:
                                          What are you doing down here,
                                          you don’t live here.

     Assistant District Attorney:         What was his response?

     Officer Lucas:                       He was visiting somebody.

     Assistant District Attorney:         After he said that, did you notice
                                          anything else about him?

     Officer Lucas:                       He was nervous at myself and
                                          Officer Coll’s presence. You could
                                          tell by his body language. He kept
                                          his hands in his pockets the whole
                                          time.     Just kind of a rigidness
                                          about him.

     Assistant District Attorney:         Did you say anything else to him?


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     Officer Lucas:                       I said: Colin, the last time I dealt
                                          with you, you had a little bit of
                                          weed on you. Got anything illegal
                                          now?

                                           ***

                                          He didn’t really say anything.     He
                                          just put his head down            and
                                          clenched his fists. I could see   him
                                          tense up his hands still in        his
                                          pockets.

                                            ***
                                          I repeated. I didn’t say weed this
                                          time. I said, you got any – like
                                          due to his hesitation, flinching I
                                          mean, that hesitation to me in my
                                          years of experience, he was trying
                                          to formulate something, so I
                                          quickly asked him again, I said, got
                                          anything illegal on you?

     Assistant District Attorney:         Did he respond?

     Officer Lucas:                       Yeah, I got a little bit of weed. He
                                          immediately pulled out a clear
                                          plastic bag and handed it to me.

                                          ***
                                          I looked at [it] real quick, through
                                          my     training    and    experience
                                          immediately recognized it to be
                                          marijuana. I put it in my uniform
                                          pocket.     I said – grabbed my
                                          handcuffs off my belt I said you’re
                                          under arrest.

                                          ***
                                          [Linnen] immediately fled on foot.
                                          ... He fought us after we caught
                                          up to him.




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      Assistant District Attorney:         But you were finally able to take
                                           him into custody?

      Officer Lucas:                       Yes, sir.


N.T., 7/2/12, at 5-8.

      The trial court concluded that, under the totality of the circumstances,

Officer Lucas and Coll’s interaction with Linnen constituted a seizure

warranting the suppression of all evidence. The trial court explained:

             [T]he incident occurred between 10:00 and 11:00 a.m. It
      occurred in a residential area and there was no testimony about
      it being a high crime area. [Linnen] had begun walking from the
      area of the initial encounter when the police first exited their
      vehicle and approached [Linnen].         The officer opined that
      [Linnen] appeared nervous. The officer knew [Linnen] had a
      baby with a woman from the neighborhood, that [Linnen] was
      not barred from the housing unit ... and that he was lawfully on
      the premises to visit. Both officers were only 3-4 feet from
      [Linnen] when they questioned him. [Linnen] was not asked by
      police to remove his hands from his pockets and was never
      asked to remove his hands for officer’s safety. [Linnen] was not
      advised that he had a right to remain silent. The testimony was
      devoid of any observation of criminal activity afoot as police
      approached. The [trial] court disagreed that the event was a
      mere encounter. Additionally, there was no legal basis for the
      police to conduct an investigative detention, as there was no
      reasonable suspicion to confront and question [Linnen]. No
      reasonable person would have felt free to leave or to ignore the
      police officer’s questioning.      Under the totality of the
      circumstances, the proximity of the officers to [Linnen], and the
      questions asked by the officer, [the circumstances] amounted to
      an investigative detention where no reasonable suspicion
      existed. The [trial court] found that [Linnen] was effectively
      detained and that any evidence seized as a result of the unlawful
      detention was properly excluded.

Trial Court Opinion, 12/23/13, at 3-4.




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     After careful review, we disagree, and conclude that the officers’ initial

interaction with Linnen constituted a mere encounter.          “To determine

whether a mere encounter rises to the level of an investigatory detention,

we must discern whether, as a matter of law, the police conducted a seizure

of the person involved.”   Collins, 950 A.2d at 1046-1047.         “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.”

Commonwealth v. Strickler, 757 A.2d 884, 889–90 (Pa. 2000) (internal

citations and footnotes omitted).   “Examples of circumstances that might

indicate a seizure, even where the person did not attempt to leave, would be

the threatening presence of several officers, the display of a weapon by an

officer, some physical touching of the person of the citizen, or the use of

language or tone of voice indicating that compliance with the officer's

request might by compelled.”     Commonwealth v. McClease, 750 A.2d

320, 324–25 (Pa. Super. 2000) quoting United States v. Mendenhall, 446


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U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Moreover, “[The

Pennsylvania Supreme Court and the United States Supreme Court have

repeatedly held a seizure does not occur where officers merely approach a

person in public and question the individual or request to see identification.”

Lyles, 97 A.3d at 303. See also Commonwealth v. Coleman, 19 A.3d

1111, 1116 (Pa. Super. 2011) (“the approach of a police officer followed by

questioning does not constitute a seizure”).

      Here, there is no evidence that when the officers turned their vehicle

around and approached Linnen on foot, they made any show of physical

force or display of authority.      Officer Lucas testified that during his

interaction with Linnen, although he had a weapon, it was in its holster and

not drawn, and that neither he nor Officer Coll blocked Linnen or otherwise

prevented him from leaving or told him that he was not free to leave. N.T.,

6/2/12, at 8.   Although Linnen initially walked away from the officers, the

officers did not aggressively or forcefully pursue him.    Rather, the record

indicates that the officers “just kept walking until [Linnen] turned around at

looked at us.” Id. at 17. Moreover, Officer Lucas testified that when Linnen

walked away, he “did not call to [Linnen]” or demand that Linnen stop. Id.

There is nothing in the record to indicate that the police officers exhibited

any overt show of force or physical control over Linnen. To the contrary, the

record indicates that when the officers approached Linnen, they did not

restrain his movements, block him from leaving, or tell Linnen that he could


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not leave, and Officer Lucas testified that during the interaction, his tone

was “amicable.” Id. at 8, 26. Additionally, the officers did not direct Linnen

to empty his pockets, but only asked if he had anything illegal on him. Id.

at 7-8. Under the totality of these circumstances, as well as current case

law, we must conclude the police officers did not effectuate a seizure of

Linnen, and that their interaction with him constituted a mere encounter that

did not need to be supported by any level of suspicion.2 See Lyles, 97 A.3d

298, 305-306 (where an officer sees men sitting at a vacant building, there

is no impropriety in the officers approaching the men, nor in asking their

reason for loitering there, and the officer's request for identification does not

elevate the interaction from a mere encounter to an investigative detention);

Coleman, 19 A.3d at 1116 (where police officer approached the appellant

and asked him if he had a gun, that interaction constituted a mere encounter

that   required     no   level    of   suspicion   to   be   constitutionally   valid);

Commonwealth v. Guess, 53 A.3d 895 (Pa. Super. 2012) (where police
____________________________________________


2
  Because the interaction constituted a mere encounter, Linnen was not
entitled to receive Miranda warnings. See Commonwealth v. Garvin, 50
A.3d 694, 698 (Pa. Super. 2012) (“Miranda rights are required only prior to
a custodial interrogation. Custodial interrogation is ‘questioning initiated by
law enforcement officers after a person has been taken into custody or
otherwise deprived of [his] freedom of action in any significant way.’
Furthermore, volunteered or spontaneous utterances by an individual are
admissible without the administration of Miranda warnings.             When a
defendant gives a statement without police interrogation, we consider the
statement to be ‘volunteered’ and not subject to suppression....
Interrogation is police conduct ‘calculated to, expected to, or likely to evoke
admission.’”)



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officer approached defendant without making any verbal command for

defendant to stop and without impeding his movement, but merely identified

himself and asked if defendant was willing to speak with him, a reasonable

person would have felt free to terminate the encounter during the initial

approach and questioning).

      Following the officers’ initial approach and conversation with Linnen,

when Linnen voluntarily produced marijuana from his pocket and then fled,

the officers’ subsequent pursuit and arrest of Linnen was supported by

probable cause in light of Linnen’s provision of illegal drugs to the officers,

and his immediate flight when the officers attempted to handcuff him. We

conclude that the officers’ interaction with Linnen was supported by the

requisite level of suspicion at all stages, and therefore we reverse the trial

court’s grant of Linnen’s suppression motion.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014




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