J-S23024-21
2021 PA Super 254
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JACOB SCOTT ROHRBACH : No. 140 EDA 2021
Appeal from the Order Entered January 6, 2021,
in the Court of Common Pleas of Monroe County,
Criminal Division at No(s): CP-45-CR-0000728-2020.
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
OPINION BY KUNSELMAN, J.: FILED DECEMBER 21, 2021
The Commonwealth appeals as of right from the order suppressing its
evidence against Jacob Scott Rohrbach and granting him a Writ of Habeas
Corpus. The Commonwealth fails to persuade us that police had reasonable
suspicion for an investigative detention of Mr. Rohrbach. Thus, we affirm.
In the early morning hours of October 10, 2019, Mr. Rohrbach left
Anytime Fitness and stopped at a Wawa’s in Brodheadsville, Pennsylvania to
grab a post-workout meal. He then drove to the empty parking lot of Freedom
Gymnastics, parked away from the closed building, and began eating.
That parking lot was known “for high-drug activity, and the owner of
[Freedom Gymnastics] has called the police about vehicles parking in the lot.”
Trial Court Opinion, 1/6/21, at 2. Thus, the state police regularly patrolled it.
However, the owner made no report of crime on the date in question, and he
never described Mr. Rohrbach or his vehicle to the police.
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* Retired Senior Judge assigned to the Superior Court.
J-S23024-21
Two state police officers, in a marked cruiser, drove into the parking lot
and saw Mr. Rohrbach’s taillights ahead of them. Mr. Rohrbach had parked in
“a not well-lit area.” N.T., 9/24/20, at 11. As recorded on the trooper’s
dashboard camera, the state police approached Mr. Rohrbach from his rear,
passenger side; Mr. Rohrbach’s car faced forward into the parking spot. See
Commonwealth’s Ex. 2. Given the gym owner’s reports, the troopers were
concerned “there may be someone overdosed or just maybe somebody that
needed help.” N.T., 9/24/20, at 11-12. Therefore, they were “approaching
the vehicle in order to mere-encounter the operator.” Id. at 12.
When the troopers’ headlights illuminated the inside of Mr. Rohrbach’s
car, he looked in their direction. After a short pause, Mr. Rohrbach started to
back out of the parking sport and turned his car as if to leave the area. See
Commonwealth’s Ex. 2. The trooper “instinctively honked [his] horn.” N.T.,
9/24/20, at 12.
Mr. Rohrbach instantly stopped his car, and the troopers alighted from
their cruiser. They walked to the other vehicle and smelled cannabis wafting
from an open window. After having Mr. Rohrbach exit his car, they searched
it and found a cannabis cigarette. Mr. Rohrbach made inculpating statements
and failed field sobriety tests. The police arrested him, and a blood-draw
revealed THC in his system. The Commonwealth charged Mr. Rohrbach with
driving under the influence of cannabis (“DUI”) and related offenses.1
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1 See 35 Pa.C.S.A. § 780-113(a)(16), (13)(i), and (a)(32) and 75 Pa.C.S.A.
§ 3802(d)(1)(i).
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Mr. Rohrbach moved to suppress the seized evidence and petitioned for
Writ of Habeas Corpus. He contended that, if the court suppressed all of the
Commonwealth’s evidence, it would be unable to make a prima facie case.
After a hearing, the suppression court granted Mr. Rohrbach full relief. This
timely appeal followed.
The Commonwealth asks whether the suppression court “erred by
concluding that [the police] lacked reasonable suspicion for an investigative
detention of [Mr. Rohrbach]?” Commonwealth’s Brief at 4.
When reviewing an order granting suppression, our scope of review only
includes “the evidence of the defendant’s witnesses and so much of the
evidence for the prosecution as read in the context of the record as a whole
remains uncontradicted.” Commonwealth v. Lindblom, 854 A.2d 604, 606
(Pa. Super. 2004). Where, as here, police invaded the privacy of an individual
without a warrant, we review whether they possessed reasonable suspicion or
probable cause de novo. See Ornelas v. United State,
517 U.S. 690 (1996).
The Commonwealth argues the suppression court erroneously ignored
“criminal activity that [was] occurring or [had] occurred, [i.e.,] the suspicious
vehicles reported by the business owner of the Freedom Gymnasium that
appeared to be [engaged] in some type of drug activity.” Id. at 13. The
Commonwealth believes that the owner’s prior reports, coupled with the fact
that Mr. Rohrbach was parked in a dark section of the gym’s parking lot at
1:15 a.m., and that the vehicle began to back up when the police cruiser
approached, gave rise to reasonable suspicion that criminal activity was afoot.
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It additionally states, “there was an odor of [cannabis] in the area of the
vehicle that [the trooper] could only observe once he exited his patrol vehicle.”
Id. at 14.
The suppression court found that, when the troopers honked their horn
at Mr. Rohrbach, they seized him for an investigative detention, commonly
known as a Terry stop.2 Under the Fourth Amendment to the Constitution of
the United States, police may initiate a Terry stop based upon reasonable
suspicion that the seized individual is involved in criminal activity. See Terry
v. Ohio, 392 U.S. 1, 30 (1968). “Pennsylvania courts have consistently
followed Terry in stop-and-frisk cases, including those in which the appellants
allege protections pursuant to Article I, § 8 of the Pennsylvania Constitution.”
In re D.M.,
781 A.2d 1161, 1163 (Pa. 2001); see also Commonwealth v.
Jefferson,
853 A.2d 404 (Pa. Super. 2004) (accord). Thus, Article I, § 8
provides citizens no greater protections from Terry stops than the Fourth
Amendment.
“In order to determine whether the police had a reasonable suspicion
[when they executed a Terry stop], the totality of the circumstances — the
whole picture — must be considered.” D.M., supra, citing United States v.
Cortez,
449 U.S. 411, 417 (1981). “Based upon that whole picture, the
detaining officers must have a particularized and objective basis for
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2 The Commonwealth agreed with Mr. Rohrbach and the suppression court
that the police initiated a Terry stop when they honked their horn and thereby
stopped him from driving away. See Commonwealth’s Memorandum of Law,
10/15/20, at 2.
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suspecting the particular person stopped of criminal activity.” Id. at 417–
18 (emphasis added). “[I]n determining whether the officer acted reasonably
. . . due weight must be given, not to his inchoate and unparticularized
suspicion or ‘hunch,’ but to the specific reasonable inferences which he is
entitled to draw from the facts in light of his experience.” Terry,
392 U.S. at
27.
Here, there was nothing particularized about the reports upon which the
state police relied when they initiated their Terry stop of Mr. Rohrbach’s car.
The troopers only knew that the owner of Freedom Gymnastics had made
generalized reports of cars in the parking lot and that he believed the people
in those cars were engaged in some sort of drug activity.
These vague reports of random criminal conduct do not describe the
people supposedly using or selling drugs or anything to identify their vehicles.
Thus, the owner’s reports extend to any car in the parking lot, including the
state police’s patrol car. The troopers’ vehicle was in the darkened section of
the empty parking lot, in the wee hours of the morning, when the gymnasium
was closed. Thus, there is as much likelihood that their car (or anyone else’s)
fit the owner’s reports. On these facts, no one had reasonable grounds to
stop the troopers’ cruiser for an investigative detention, any more than the
troopers had reasonable grounds to stop Mr. Rohrbach for one.
Nebulous reports, like those at bar, lack the particularity required to link
anyone to a criminal act. See Cortez, supra. They may well support the
troopers’ factual assertion that this case occurred in a high-crime area.
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However, they do not give police a general warrant to stop every car in the
parking lot after business hours, without additional observations regarding a
particular vehicle that would reasonably indicate that crime was afoot. See,
e.g., Commonwealth v. Adams, 205 A.3d 1195, 1206-07 (Pa. 2019), cert.
denied sub nom. Pennsylvania v. Adams, ___ U.S. ___,
140 S. Ct. 2703
(2020) (holding that, when a car is parked in the lot of a closed business in
the middle of the night, those facts “alone do not give rise to a finding of
reasonable suspicion of criminal activity where the officer provided no specific
or articulable facts to suggest that criminal activity is occurring or has
occurred.”)
Similarly, in Commonwealth v. Tither, 671 A.2d 1156 (Pa. Super.
1996), police were patrolling a high-crime area, notorious for drug trafficking
and prostitution, at night, when someone yelled, “5-0! 5-0!” — i.e., “street
jargon warning that police were in the area.”
Id. at 1157. There was car in
front of the officer’s cruiser, and a pedestrian was reaching into it. Hearing
the warning cry, the pedestrian quickly departed on foot, and the car began
to drive away.
The officer believed he had just witnessed a drug deal, so he followed
the car, which eventually parked on its own. “The officer stopped behind the
[car] and approached on foot. As he arrived at the rear of the vehicle, it
started to pull away, so he knocked on the side windows of the vehicle. The
defendant stopped the vehicle again.” Id. The officer eventually arrested the
driver for DUI.
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This Court held that the totality of the circumstances did not amount to
reasonable suspicion. “The fact that [Tither] was observed in a high crime
area known for drug-related activity is not sufficient to justify a Terry stop.
Similarly, that [Tither] drove away soon after someone yelled ‘5–0! 5–0!’ is
likewise deficient to constitute reasonable suspicion.” Id. at 1158 (citations
omitted). Also, a pedestrian leaning into Tither’s car was not criminal conduct,
even though this aroused the officer’s curiosity that it may have been a drug
deal. The Tither Court reversed the order denying suppression.
Like the officer in Tither, the state police observed Mr. Rohrbach’s car
pull away from them in a high-crime area. At the time of this observation,
the police possessed no particularized basis for inferring that a crime was in
progress or had occurred. Even so, they honked their horn and initiated a
Terry stop. Therefore, we agree with the suppression court: the police lacked
reasonable suspicion to detain Mr. Rohrbach when they chose to do so.
Perhaps anticipating our conclusion, the Commonwealth asks this Court,
“At what point is [the state trooper] supposed to ignore his observations?”
Commonwealth’s Brief at 13.
This rhetorical question is unfair. Neither the Fourth Amendment nor
Terry, supra, compel police to ignore their observations. They mandate that
police keep observing until they (a) see conduct by a particular individual
leading to a reasonable suspicion that he or she may be involved in a crime,
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(b) have probable cause, or (c) obtain a warrant.3 Seizing an individual before
one of these occurs is a constitutional violation.
In this instance, once the troopers had a hunch that Mr. Rohrbach was
DUI or had overdosed, they could have followed him as he drove from the
parking lot and through the streets of the town. Had signs of intoxication
manifested, there would have been reasonable suspicion for a Terry stop. But
the troopers elected not to do this. Instead, they prematurely seized Mr.
Rohrbach and, therefore, intruded on his privacy without a reasonable basis.
This violated the Fourth Amendment.
Accordingly, everything that occurred after the troopers honked their
horn (smelling cannabis near Mr. Rohrbach’s vehicle, uncovering cannabis in
it, administering field sobriety tests, obtaining self-incriminating statements,
and drawing Mr. Rohrbach’s blood) is the product of the unconstitutional traffic
stop. All of the Commonwealth’s evidence is fruit of the poisonous tree and
must be suppressed under the exclusionary rule. See Wong Sun v. United
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3 If in doubt, “get a warrant.” Riley v. California, 573 U.S. 373, 403 (2014).
Had the officers obtained a search warrant, we would not have had to second
guess their actions with such scrutiny. Instead, we would have deferred to a
magisterial district judge’s finding of probable cause. See Illinois v. Gates,
462 U.S. 213 (1983). Thus, the benefits of a warrant cannot be overstated.
In fact, our jurisprudence rewards police (both at suppression hearings and
on appeal) for getting one. “The Fourth Amendment demonstrates a ‘strong
preference for searches conducted pursuant to a warrant,’
Gates, supra, at
236, and the police are more likely to use the warrant process if the scrutiny
applied to a magistrate’s probable-cause determination to issue a warrant is
less than that for warrantless searches. Were we to eliminate this distinction,
we would eliminate the incentive.” Ornelas v. United States,
517 U.S. 690,
699, (1996).
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States, 371 U.S. 471 (1963). Hence, the trial court properly granted Mr.
Rohrbach’s Petition for Writ of Habeas Corpus.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
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4 We note the Commonwealth raised three other issues challenging various
findings of additional constitutional violations subsequent to the stop of Mr.
Rohrbach’s car and the habeas corpus relief. See Commonwealth’s Brief at
4. The unconstitutionality of the initial stop and the resultant suppression of
the evidence renders those remaining issues moot.
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