                           [J-17-2018] [MO: Dougherty, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


    IN THE INTEREST OF: A.A., A MINOR           :   No. 28 MAP 2017
                                                :
                                                :   Appeal from the Order of the Superior
    APPEAL OF: A.A.                             :   Court at No. 1931 MDA 2015 dated
                                                :   October 18, 2016 Affirming the Order
                                                :   of the Dauphin County Court of
                                                :   Common Pleas, Juvenile Division, at
                                                :   No. CP-22-JV-0000144-2015 dated
                                                :   September 28, 2015.
                                                :
                                                :   ARGUED: April 10, 2018


                                 CONCURRING OPINION


JUSTICE BAER                                             DECIDED: October 17, 2018
        As I understand the Majority Opinion, it can be read to hold that a trial court must

examine the totality of the circumstances when deciding, as a matter of law, whether a

police officer subjected a defendant to one or two interactions for constitutional purposes.1

I also take away from the Majority Opinion that there are no “magic words” that an officer

can say to a suspect, such as “you are free to leave” or “goodnight,” that automatically

transform one interaction into two separate exchanges.          While I agree with these



1  As the Majority accurately explains, there are traditionally three categories of
interactions between police and private citizens: mere encounters, investigative
detentions, and arrests or custodial detentions. Majority Opinion at 10. A mere encounter
has been described as a police officer’s request for information that does not need to be
supported by any level of suspicion and that does not require the citizen to stop or
respond. Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003). An investigative detention
is “lawful if supported by reasonable suspicion [of criminal activity] because, although it
subjects a suspect to a stop and period of detention, it does not involve such coercive
conditions as to constitute the functional equivalent of an arrest.” Id. To arrest a citizen,
a police officer must have probable cause that the citizen committed a crime. Id.
principles and with the Majority’s ultimate conclusion that suppression was unwarranted

in this case, I respectfully distance myself from the Majority’s suggestion that it is of no

consequence to the present analysis whether A.A. was subjected to one or two police

detentions.    See Majority Opinion at 9-10 n.9 (stating that, “under the specific

circumstances of this case, the semantic distinction between a ‘second’ or ‘continued’

detention is immaterial to our analysis, which is premised upon a consideration of the

totality of the circumstances”).

       In this regard, the Majority does not find that Sergeant Still subjected A.A. to a

single, continuous legal detention but, rather, validates the situation as two legal

detentions of A.A.     Id. at 21 (providing that “it is clear based on the totality of

circumstances derived from the initial stop - which included the odor of marijuana noted

by Sergeant Still along with his observations of appellant’s sluggish and confused

appearance and Lewis’s furtive movements - that he had reasonable suspicion to conduct

a second detention of appellant”). In my view, concluding that there were two separate

detentions of A.A. would alter the legal analysis and, at least arguably, would support

A.A.’s claim that suppression was warranted because the second detention was illegal.

       Instead of describing the circumstances underlying this appeal as encompassing

two separate detentions, I would apply the above-stated principles of law to the facts

presented and conclude that what occurred here was one, continuous legal seizure of

A.A. that resulted in her voluntarily providing consent to search the vehicle. Specifically,

it is undisputed that Sergeant Still had probable cause to stop A.A.’s vehicle and detain

her for purposes of issuing a traffic citation. The record clearly establishes that, during

that legal stop, Sergeant Still, inter alia, “smelled an odor of marijuana coming from the

interior of the vehicle.” N.T., 8/6/2015, at 7. Thus, at that point, Sergeant Still had, at the

very least, reasonable suspicion to believe that A.A. was engaged in illegal conduct.




                            [J-17-2018] [MO: Dougherty, J.] - 2
Consequently, he had the requisite suspicion to continue the seizure past its original

purpose. See Rodriguez v. United States, 135 S.Ct. 1609, 1614-15 (2015) (explaining

that an officer “may conduct certain unrelated checks during an otherwise lawful traffic

stop[, but] he may not do so in a way that prolongs the stop, absent the reasonable

suspicion ordinarily demanded to justify detaining an individual”).

       That Sergeant Still “broke contact” with and said goodnight to A.A. after he issued

to her the traffic citation has no impact on the legality of the seizure, as the record

demonstrates that the length of time the sergeant broke contact with A.A. was fleeting.

See, e.g., N.T., 8/6/2015, at 7 (stating that Sergeant Still “briefly broke contact with [A.A.]

by bidding her good night”). In other words, viewing the totality of the circumstances,

Sergeant Still subjected A.A. to one, continuous seizure that was supported by the

requisite levels of suspicion throughout. Having reached these conclusions, like the

Majority, I would affirm the Superior Court’s judgment, which affirmed the juvenile court’s

dispositional order.

       Justice Donohue joins this concurring opinion.




                            [J-17-2018] [MO: Dougherty, J.] - 3
