J-S37018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DOUGLAS ENGELBERT

                         Appellant                  No. 1248 WDA 2015


             Appeal from the Judgment of Sentence July 15, 2015
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0001764-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

CONCURRING STATEMENT BY LAZARUS, J.:                  FILED JUNE 17, 2016

      I join the majority because I agree that Corporal Grenci had

reasonable suspicion to believe that Engelbert was trafficking a controlled

substance.

      However, I write separately to note my disagreement with the

suppression court’s reliance on Corporal Grenci’s conclusion that Engelbert’s

act of inquiring whether he was “free to go” confirmed that he had “prior

contact in these kinds of circumstances.” Trial Court Opinion, 12/1/14, at 3.

As Corporal Grenci testified, “[f]ree to go is very important in criminal

interdiction work . . . the normal innocent motoring public doesn’t know the

significance of free to go, but he did.”   Suppression Hearing, 11/24/14, at

20.
J-S37018-16



      In United States v. Mendenhall, 466 U.S. 544 (1980), Justice

Stewart noted that “a person has been ‘seized’ within the meaning of the

Fourth Amendment only if, in view of all the circumstances surrounding the

incident, a reasonable person would have believed that he was not free to

leave.” Id. at 554. This test was adopted by a majority of the Court in later

cases, see Michigan v. Chesternut, 486 U.S. 567, 573 (1988); INS v.

Delgado, 466 U.S. 210, 215 (1984). Accordingly, any law-abiding citizen

who studied the Fourth Amendment in a high school civics class would know

that asking whether he or she is free to leave is a reasonable question to ask

an officer as their interaction winds down.

      Separate from their constitutional import, these words may simply be

a polite request from a citizen who wants to end an encounter with an

authority figure and continue on his or her way.

      Therefore, I distance myself from the suppression court’s decision to

assign any weight to the fact that Engelbert asked if he was free to go.



      GANTMAN, President Judge, joins this concurring statement.




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