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2022 PA Super 95
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SYLVESTER ANDERSON : No. 662 MDA 2020
Appeal from the Suppression Order Entered April 21, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004013-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE,
J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.
OPINION BY McCAFFERY, J.: FILED: MAY 25, 2022
The Commonwealth appeals from the April 21, 2020, order entered in
the Court of Common Pleas of Dauphin County granting the motion to
suppress filed by Sylvester Anderson (Appellee).1 The Commonwealth
contends the trial court erred in categorizing the police interaction with
Appellee as an improper investigative detention rather than a mere encounter.
Central to this appeal is the question of whether a reasonable person would
feel free to leave or not engage with a police officer when, inter alia, this was
a two-phase interaction, there were multiple armed and uniformed officers
____________________________________________
1 The Commonwealth took this interlocutory appeal pursuant to its
certification under Pa.R.A.P. 311(d) that the trial court’s ruling terminates or
substantially handicaps it prosecution. See Commonwealth’s Brief at 1; see
also Commonwealth v. Holston, 211 A.3d 1264, 1268 (Pa. Super. 2019)
(en banc).
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present, and one officer requested Appellee’s identification while also
questioning him about his parole status and whether he had anything on his
person. The Commonwealth suggests yes. Moreover, the Commonwealth
argues the trial court erred in finding that the officer’s search of Appellee’s
person exceeded the scope of consent that he granted and therefore, the
Commonwealth was unable to meet its burden of proving valid consent. Upon
review, we affirm.
The trial court summarized the relevant facts of this case, which were
taken from the January 2020 suppression hearing, as follows:
On May 29, 2019, Officer Chad McGowan (hereinafter “Officer
McGowan”) of the City of Harrisburg Police department was
assigned to the Street Crimes Unit. He was accompanied by four
(4) other law enforcement officers – Adult Probation Officer
Chianos, Sheriff Deputy Long, Sheriff Deputy [Maurice] Edwards,
and Corporal Teeter,[2] all of whom were in an unmarked police
car equipped with police lights as part of their patrol for the Street
Crimes Unit. All were dressed in the Street Crimes Unit outfit –
tactical attire, sewn-on badge in the front, police insignia on the
front and back, and “Street Crimes Unit” on one sleeve, and either
“Police” or “Sheriff” or “Probation” (depending on the officer’s
employment) on the other sleeve.
At approximately 9:30 P.M., Officer McGowan was driving
an unmarked vehicle with four (4) other uniformed and armed law
enforcement officers through the parking lot of Harrisburg Fried
Chicken, located at 1314 Market Street. This parking lot is known
to officers as a high crime, high drug area.
Officer McGowan observed an unknown male (later
identified as [Appellee]) “on his hands and knees, looked to be
____________________________________________
2 A review of the certified record does not reveal the first names of Officer
Chianos, Sheriff Deputy Long, and Corporal Teeter.
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crawling on the ground, next to a red Dodge pickup truck” for less
than a minute. The vehicle was not running, Officer McGowan did
not see anyone operating the truck and did not observe how the
truck got into the parking lot. Further, there was no indication
that [Appellee] was the operator of the truck except for [his]
proximity to the truck. Officer McGowan pulled his vehicle, with a
total of five (5) uniformed and armed law enforcement officers,
beside [Appellee] and saw that he was “profusely sweating2,” and
asked if [Appellee] was okay. [Appellee] responded that he had
just dropped something on the ground. Officer McGowan testified
that he considered that to be the end of their initial contact.
___________________
2 The unconverted testimony is that on May 29, 2019, the
high temperature was 86 degrees with 67% humidity.
___________________
[Appellee] then entered Harrisburg Fried Chicken. After
[he] went inside, Officer McGowan testified that he noticed the
driver’s side window of the truck was down, which he believed was
uncommon for this area. In addition, the car was not parked
within the lines of the parking space. Officer McGowan “became
curious if the individual was possibly, you know, intoxicated or
impaired on alcohol or a controlled substance.” Despite these
observations, Officer McGowan testified that he did not intend to
find the driver of the vehicle or ask [Appellee] if he was the
operator of the vehicle. Rather, he, along with four (4) other
armed and uniformed law enforcement officers, waited in the
vehicle which was parked in the drive-through. However, Deputy
Sheriff Edwards testified that all five (5) armed and uniformed law
enforcement officers exited the vehicle once [Appellee] went
inside Harrisburg Fried Chicken. Deputy Sheriff Long walked over
to the entrance and watched [Appellee] the entire time he was
inside [the food establishment], and noted that [Appellee] did not
order food [but did get a soda,] and was pacing inside.
Officer McGowan testified that when [Appellee] exited
Harrisburg Fried Chicken, he looked left toward the officers, and
then turned right and began walking in the opposite direction.
Based on that behavior, Officer McGowan, along with Deputy
Sheriff Edwards approached [Appellee] – dressed in their Street
Crimes Unit outfit and armed.3 Officer McGowan asked to speak
to [Appellee], which he obliged. Officer McGowan then asked
[Appellee] for identification, which [Appellee] provided a valid
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identification.4 He then specifically asked [Appellee] if he was on
parole and if there was anything illegal on his person. [Appellee]
responded that he was on parole but did not have anything illegal
on his person. Notably, Officer McGowan did not document that
[Appellee] was “profusely sweating” nor exhibiting signs of being
under the influence during this second encounter. Interestingly,
Deputy Sheriff Edwards testified that he smelled an odor of alcohol
and [Appellee]’s eyes were red and glassy.
___________________
3 Officer McGowan is 6’6” and 240 pounds, Deputy Sheriff
Edwards is 5’9”, and [Appellee] is 5’6”.
4 Neither Officer McGowan nor Deputy Sheriff Edwards could
recall whether a warrant check was conducted when
[Appellee] provided his identification.
___________________
Apparently not satisfied with [Appellee]’s answers, Officer
McGowan asked [Appellee] for permission to search his person.
Officer McGowan testified that he did not believe [Appellee] was
untruthful in his responses, [Appellee] was calm, and did not show
any signs of intoxication (i.e. no odor of alcohol) – the “best
glimpse” Officer McGowan had that something was “off” was the
fact that [Appellee] was allegedly sweating profusely when he first
stood up from being on the ground. Further, Deputy Sheriff
Edwards stated that he believed at that point they had “some
reasonable suspicion of something,” but were still treating it as a
mere encounter. Notably, Officer McGowan did not testify that he
wanted to pat-down [Appellee] for officer safety. Rather, he
specifically asked [Appellee] to search his person. According to
the testimony, [Appellee] granted verbal consent and “held his
hands up in the air as if allowing me [Officer McGowan] to conduct
my search a little easier.”
Officer McGowan first searched [Appellee]’s pockets and
found nothing of significance. He then “swept over [Appellee]’s
groin region” and “felt a hard and distinct bulge . . . it was
immediately apparent to me he had a substantial amount of crack
cocaine down the front of his pants.” Further, Officer McGowan
testified that “[b]efore it was even recovered, I remember
specifically saying to my partner, he has an ounce of crack down
his pants. And sure enough, we removed 28.3 grams of crack
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cocaine.” At that point, Officer McGowan decided to place
[Appellee] under arrest.
[Appellee] attempted to flee but was tackled a few feet away
and a struggle ensued. Officer McGowan stated that [Appellee]
was resisting arrest until Deputy Sheriff Edwards “advised him
that he was going to Taser him if he did not comply.” After
[Appellee] was handcuffed, Officer McGowan recovered the “large
amount of crack cocaine.” It was later determined that the
substance recovered “was almost exactly an ounce of crack
cocaine, just like [Officer McGowan] thought.”
[Appellee] testified on his own behalf at the suppression
hearing. His testimony was generally the same as that of Officer
McGowan and Deputy Sheriff Edwards. However, [Appellee]
testified that during the initial encounter, Officer McGowan exited
his vehicle, asked him what he was doing, and asked for his
identification. Additionally, [Appellee] stated that Officer
McGowan patted him down before going into Harrisburg Fried
Chicken. During the second encounter with [Appellee], Officer
McGowan “went in my pockets, pulled the stuff out of my pockets,
and then he patted me down, which he admitted. He didn’t just
swipe. And then he starts rubbing – grabbing my testicles and
penis.” [Appellee] stated that the search made him feel sexually
violated. [Appellee] also disputes that he ran – “I didn’t have a
chance to run from him. I wouldn’t have ran because they had a
K-9 . . . dog[] out there.”5
___________________
5 Although Deputy Sheriff Long is a K-9 handler, according
to Officer McGowan, he did not have his K-9 partner with
him that night of the incident. However, Officer McGowan
stated that Sergeant Meik, who is also a K-9 handler, arrived
on scene toward the end of the interaction.
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Trial Ct. Op., 6/30/20, at 1-5 (record citations and emphasis omitted). At the
conclusion of the encounter, the police arrested and charged Appellee with
numerous offenses.3
On August 1, 2019, a preliminary hearing was conducted, where Officer
McGowan testified about the events that transpired on the evening of May
29th. The matter was then held over for court.
On November 12, 2019, Appellee filed a motion seeking suppression of
all physical evidence and incriminating statements which he alleged were
“unlawfully and unconstitutionally obtained from him under the state and
federal constitutions.” Defendant’s Motion to Suppress Evidence, 11/12/19,
at 23. Specifically, Appellee stated that his constitutional rights were violated
because the police lacked both reasonable suspicion and probable cause when
they first stopped him in the parking lot where he was not engaged in any
illegal or suspicious activity and was not in a high-crime area, and then when
upon entering and subsequently exiting a restaurant, the officers followed,
questioned, and searched him without his consent. See id. at 6. Appellee
alleged that although Officer McGowan testified that his initial interaction with
Appellee was a “mere encounter,” it transformed into an “investigative
detention” once the officers detained him, ordered him to put down what he
____________________________________________
3 See 35 P.S. §§ 780-113(a)(30) and (a)(32), and 18 Pa.C.S. §§ 5104 and
5505.
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was holding, and “coerced a bodily search of his person.” Id. at 12. Appellee
averred the officer lacked reasonable suspicion to support the stop based on
the following: (1) Appellee did not commit any illegal acts in the parking lot;
(2) the officer testified that he did not detect any odor of alcohol on Appellee’s
breath; (3) the officers did not observe Appellant engaged in any other
suspicious activity; and (4) there was no apparent indication that Appellee
possessed a gun, other weapon, or contraband on his person. See id. at 13.
Moreover, Appellee claimed that his consent to the officer’s search of his
person was not voluntarily, knowingly, or intelligently made. See Defendant’s
Motion to Suppress Evidence, 11/12/19, at 17. He stated that he was
“cornered by multiple officers in a dark parking lot at night” and the officers
“demanded to know whether he was on probation [or] parole” and questioned
whether he had anything illegal on his person. Id. at 20. In support of his
argument, Appellee alleged he was never told he was free to leave, the officer
directed his movements, the line of questioning was intimidating and coercive,
the officer’s demeanor was also coercive, and the officer never informed
Appellee that he could refuse to the consent of his person. See id. Lastly,
Appellee alleged that his attempt to flee the scene could not serve as a basis
for reasonable suspicion. See id. at 21.
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The court held a suppression hearing on January 23, 2020.4 The court
subsequently granted Appellee’s motion on April 21, 2020, ordering that “all
evidence following the improper search of [Appellee]’s person shall be
suppressed.” Order, 4/21/20 (some capitalization and emphasis omitted). In
the corresponding opinion, the court focused its analysis solely on the consent
issue, first opining: “We find Officer McGowan’s testimony to be credible, and
find that consent was freely given, and that Officer McGowan immediately
recognized the object found in [Appellee]’s pants as contraband.” Trial Ct.
Op., 4/21/20, at 3. However, the court then turned to the issue of whether
____________________________________________
4 The Commonwealth did not file a response to Appellee’s motion to suppress,
but following the hearing, it did file a proposed findings of fact and conclusions
of law regarding the motion to suppress. See Commonwealth’s Proposed
Findings of Fact and Conclusions of Law Regarding the Defendant’s Motion to
Suppress Evidence, 2/5/20. The Commonwealth alleged Officer McGowan
took no coercive action to obtain Appellee’s consent to search. See id. at ¶
23. It also averred that “[b]y failing to raise the question of scope of consent
with specificity,” Appellee waived the issue; but even if he had properly
preserved the argument, the search was within the scope of Appellee’s
unrestricted consent to the officer’s request. Id. at ¶ 54-55. The
Commonwealth further asserted that Officer McGowan’s interaction with
Appellee constituted a mere encounter where the officer requested
identification and asked questions, “but neither he nor his partners conveyed
an implicit or explicit message that compliance with his requests was
required.” Id. at ¶ 61 (citation omitted). The Commonwealth provided the
alternative argument that even if the interaction amounted to an investigative
detention, the officer possessed reasonable suspicion based on the totality of
the circumstances. See id. at ¶ 62.
Appellee also submitted his own proposed findings of fact and
conclusions of law regarding the motion to suppress. See Defendant’s
Proposed Findings of Fact and Conclusions of Law re: Suppression Motion,
2/14/20.
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the officer exceeded the consent Appellee granted him. See id. The court
determined:
The Commonwealth also argue[d] that [Appellee] did not
“restrict the scope of his consent to a search of his person for
contraband.” However, there was nothing in the verbal exchange
between the officer and [Appellee] as to what the officer was
looking for, or where the officer intended to search. Without the
officer stating how thorough a search was intended, or what the
search was for, there would be no reason to state that his consent
did not extend to his genitals. If anything, a reasonable person
would most likely expect a Terry[5] pat-down weapons search, as
routinely seen in movies and television. This [c]ourt would
conclude that even a Transportation Security Administration
(“TSA”) search would not include the genital area without specific
consent or moving the search to a non-public location.
Although this [c]ourt is impressed with Officer McGowan’s
police instincts, we are constrained to conclude that the search of
[Appellee]’s person exceeded the scope of consent that [Appellee]
granted. Officer McGowan searched [Appellee]’s groin region in a
public parking lot, and it was not reasonable for Officer McGowan
to believe that [Appellee]’s consent extended to such an intrusive
search of a private area. Accordingly, the Commonwealth was
unable to meet its burden of proving valid consent to conduct such
an invasive search of the intimate parts of his person.
Id. at 5-6 (citation omitted). The Commonwealth timely filed a notice of
appeal.6
On March 30, 2021, a divided three-judge panel of this Court reversed
the trial court’s order and remanded the matter for further proceedings in a
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5 Terry v. Ohio, 392 U.S. 1 (1968).
6 The court did not order the Commonwealth to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), but the court did file
an opinion pursuant to Pa.R.A.P. 1925(a) on June 30, 2020.
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non-precedential decision. Employing an objective test, the majority
concluded that both stages of interaction between Officer McGowan and
Appellee – meaning the time periods before and after Appellee went into the
restaurant – were mere encounters. Referencing Commonwealth v. Au, 42
A.3d 1002 (Pa. 2012), as controlling case law, the majority pointed out that
the trial court credited Officer McGowan’s testimony and further construed
that the officer’s request for Appellee’s identification did not transform the
encounter into an investigative detention. The majority determined that
Appellee’s consent was not the product of an illegal detention because the
totality of the circumstances did not reasonably convey to Appellee that he
was obligated to talk to Officer McGowan or that he could not have gone about
his business. The majority also addressed the alternative argument that even
if the second encounter constituted an investigative detention, the police
possessed reasonable suspicion where: (1) Appellee was observed crawling
on the ground next to the truck that was not properly parked; (2) he was
sweating profusely; and (3) as Appellee left the restaurant, he started walking
towards the officers but, when he saw that they were still there, he turned
and walked in the opposite direction.
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The majority then addressed the scope of consent issue,7 finding the
Commonwealth’s argument that Officer McGowan did not exceed the scope of
Appellee’s consent persuasive. The majority determined a reasonable person
in Appellee’s shoes would have understood from the context of the entire
exchange with Officer McGowan that the search included the groin area. It
also stated that a preceding question ─ about whether Appellee had anything
illegal on his person ─ was the obvious trigger for the request to search.
The dissent, on the other hand, agreed with the trial court that scope of
the search of Appellee’s person exceeded the consent given based on the area
searched. Moreover, the dissent concurred with the court that when Appellee
was approached by five uniformed officers who asked for, and then retained,
his identification card, such evidence supported the conclusion that the
encounter escalated from a mere encounter to an investigative detention. The
dissent pointed to the following: (1) none of the investigating officers took
steps to discover whether Appellee was the operator of the crookedly parked
vehicle; (2) sweating in late May is not evidence of driving or being under the
influence; and (3) the fact that Appellee walked away from the officers
demonstrated that he was not driving.
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7 The Commonwealth argued that Appellee had not properly preserved the
claim, but the majority determined Appellee had raised the argument at the
suppression hearing, thereby preserving the challenge.
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Thereafter, Appellee filed an application for reargument en banc,
arguing, inter alia, that the majority erred in concluding that the police were
not performing an investigative detention when they procured consent to
search Appellant’s person, and that it failed to cite controlling precedent from
the Pennsylvania Supreme Court in Commonwealth v. Cost, 224 A.3d 641
(Pa. 2020). This Court granted Appellee’s request and withdrew the three-
judge panel decision issued in this matter. En banc argument was held in
December 2021, and the case is now before us.
The Commonwealth raises the following issues on appeal:
1. Whether the [trial] court erred in granting Appellee’s
suppression motion where the encounter between the Appellee
and the police officer was a mere encounter and not an
investigatory detention?
2. Whether, in the alternative, the [trial] court erred in granting
the Appellee’s suppression motion where police possessed
reasonable suspicion for an investigatory detention?
3. Whether the [trial] court erred in granting the Appellee’s
motion to suppress evidence where the Appellee voluntarily
consented to the search and the search did not exceed the
scope of that consent?
4. Whether Appellee waived his challenge to law enforcement’s
alleged exceeding the voluntariness of his consent by not
raising it in the [trial] court?
Commonwealth’s Brief at 4 (some capitalization omitted). Based on the
nature of the Commonwealth’s claims, we will address the first two arguments
together, and then the remaining claims jointly.
When reviewing suppression decisions, our standard of review is limited.
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We review trial court suppression orders to determine whether the
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. We are bound by
the suppression court’s factual findings so long as they are
supported by the record. In reviewing an appeal by the
Commonwealth of a suppression order, we may consider only the
evidence from the [defendant’s] witnesses along with the
Commonwealth’s evidence which remains uncontroverted. Our
scope of review of suppression court factual findings is limited to
the suppression hearing record. We, however, are not bound by
a suppression court’s conclusions of law; rather, when reviewing
questions of law, our standard of review is de novo and our scope
of review is plenary.
Commonwealth v. Barr, 266 A.3d 25, 39 (Pa. 2021) (citations and
quotations marks omitted).
The Commonwealth first argues that the trial court erred in granting
Appellee’s motion to suppress because the entire interaction between the
police and Appellee constituted a mere encounter and did not rise to the level
of an investigative detention. See Commonwealth’s Brief at 11. Relying on
Au, supra, the Commonwealth suggests that this Court “should find that the
arresting officer’s request for [Appellee]’s identification did not transform the
encounter into an unconstitutional detention.” Commonwealth’s Brief at 14.
The Commonwealth points to the following in support of its argument:
Here, given the late hour, the fact that [Appellee] was seen
crawling on his hands and knees while sweating profusely in a
parking lot that is known as a high-drug area, [Appellee]’s sudden
departure into the store, the cockeyed parking of the truck, and
the fact that [Appellee] walked away from his vehicle while the
windows were still down in a high crime area, provided plenty of
reasons for the officer to investigate further.
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Id. Moreover, the Commonwealth states that Officer McGowan did not
request Appellee’s identification “until after he witnessed [Appellee]’s strange
behavior only a few moments before” and “the officers did not block
[Appellee]’s vehicle from leaving the parking lot nor did they block [him] from
leaving the area.” Id. at 15. The Commonwealth reiterates that the
interaction was nothing more than a mere encounter and the officer’s request
for identification did not transform the matter into an unconstitutional
investigatory detention. See id. at 16.
In its second claim, the Commonwealth addresses the alternative
argument that even if the interaction was an investigatory detention, the
police officers possessed the requisite reasonable suspicion and therefore,
Appellee was legally detained. See Commonwealth’s Brief at 16. Relying on
Commonwealth v. Carter, 105 A.3d 765 (Pa. Super. 2014) (en banc), the
Commonwealth contends that Officer McGowan had reasonable suspicion to
first seize Appellee and then conduct the pat-down where he observed
Appellee “on his hands and knees, sweating profusely near a vehicle that was
parked cockeyed, at night, in a high-drug area.” See Commonwealth’s Brief
at 19. Moreover, the officer articulated that based on his experience and
“observations of [Appellee’s strange conduct, that [Appellee] could [have
been] intoxicated.” Id. at 20. The Commonwealth further states that the
officer’s actions were warranted based on the belief that “his safety was at
risk.” Id. Lastly, the Commonwealth argues for the first time that “Officer
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McGowan was discharging his duties” under the public servant exception of
the community caretaking doctrine.8 Id. at 21. Specifically, the
Commonwealth alleges “Officer McGowan was discharging his duties” under
the exception “when he was checking on [Appellee], who appeared to be
intoxicated in a high drug area, hunched over on the ground on all fours.” Id.
at 22.
When a defendant files a motion to suppress evidence, “it is the
Commonwealth’s burden to present evidence that the defendant’s
constitutional rights were not infringed.” Commonwealth v. Enimpah, 106
A.3d 695, 701 (Pa. 2014).
The Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution guarantee
the right of the people to be secure in their persons, houses,
papers, and possessions from unreasonable searches and
seizures. To secure the right of citizens to be free from
unreasonable search and seizure, courts in Pennsylvania require
law enforcement officers to demonstrate ascending levels of
suspicion to justify their interactions with citizens to the extent
those interactions compromise individual liberty. Because
interactions between law enforcement and the general citizenry
are widely varied, search and seizure law looks at how the
interaction is classified and if a detention has occurred.
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8 See Commonwealth v. Livingstone, 174 A.3d 609, 634 (Pa. 2017)
(holding “in order for the public servant exception of the community
caretaking doctrine to apply, police officers must be able to point to specific,
objective, and articulable facts that would reasonably suggest to an
experienced officer that a citizen is in need of assistance.”) (citations omitted).
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Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019) (internal
citations and quotation marks omitted).
In determining whether a police officer’s interaction with a citizen was
proper, we are guided by the following:
Our Supreme Court has explained the three types of
interactions between law enforcement and private citizens as
follows:
The first is a mere encounter, sometimes referred to as
a consensual encounter, which does not require the officer
to have any suspicion that the citizen is or has been engaged
in criminal activity. This interaction also does not compel
the citizen to stop or respond to the officer. A mere
encounter does not constitute a seizure, as the citizen is free
to choose whether to engage with the officer and comply
with any requests made or, conversely, to ignore the officer
and continue on his or her way. The second type of
interaction, an investigative detention, is a temporary
detention of a citizen. This interaction constitutes a seizure
of a person, and to be constitutionally valid[,] police must
have a reasonable suspicion that criminal activity is afoot.
The third, a custodial detention, is the functional equivalent
of an arrest and must be supported by probable cause. A
custodial detention also constitutes a seizure.
No bright lines separate these types of encounters, but
the United States Supreme Court has established an
objective test by which courts may ascertain whether a
seizure has occurred to elevate the interaction beyond a
mere encounter. The test, often referred to as the “free to
leave test,” requires the court to determine whether, taking
into account all of the circumstances surrounding the
encounter, the police would have communicated to a
reasonable person that he was not at liberty to ignore the
police presence and go about his business. Whenever a
police officer accosts an individual and restrains his freedom
to walk away, he has seized that person.
Commonwealth v. Adams, 205 A.3d 1195, 1199-1200 (Pa.
2019) (citations, brackets and some quotation marks omitted).
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Further, in considering whether a seizure occurred, or
whether a reasonable person would feel free to leave, courts may
examine the following:
[T]he number of officers present during the interaction;
whether the officer informs the citizen they are suspected of
criminal activity; the officer’s demeanor and tone of voice;
the location and timing of the interaction; the visible
presence of weapons on the officer; and the questions
asked. Otherwise inoffensive contact between a member of
the public and the police cannot, as a matter of law, amount
to a seizure of that person.
Commonwealth v. Beasley, 761 A.2d 621, 624-25 (Pa. Super.
2000) (citation omitted). Further, “[w]ith respect to the show of
authority needed for a detention, the circumstances must present
some level of coercion, beyond the officer’s mere employment,
that conveys a demand for compliance or threat of tangible
consequences from refusal.” Luczki, 212 A.3d at 544.
Commonwealth v. Jones,
266 A.3d 1090, 1094-95 (Pa. Super. 2021).
Here, no one disputes that the initial contact the officers had with
Appellee, meaning when Officer McGowan spoke with him before he walked
into the restaurant, was a mere encounter and did not require any level of
suspicion. See Trial Ct. Op., 6/30/20, at 7; Commonwealth’s Brief at 11-22;
Appellee’s Substituted Brief at 18-33.
The issue is the second phase of the encounter – after Appellee exited
the restaurant and the officers immediately stopped him. The trial court found
the “second contact with Appellee began as a mere encounter and escalated
to an investigative detention requiring reasonable suspicion.” Trial Ct. Op.,
6/30/20, at 7. The court opined:
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Based on the totality of the circumstances, and taking into account
all reasonable inferences in light of Officer McGowan’s experience,
we find that Officer McGowan lacked the requisite reasonable
suspicion to subject Appellee to an investigation detention, as well
as a pat-down search or Terry frisk, as he failed to provide specific
and articulable facts that would lead him to believe [that]
criminal activity was afoot.
Id. at 9 (emphasis in original).
We note that the trial court’s factual findings are supported by the
record, and therefore, we are bound by those findings. See Barr, 266 A.3d
at 39. We now turn to the question of whether the stop at issue elevated the
interaction beyond a mere encounter – in other words, the “free to leave test.”
We reiterate that the test examines whether based on circumstances
surrounding the encounter, “the police would have communicated to a
reasonable person that he was not at liberty to ignore the police presence and
go about his business. Whenever a police officer accosts an individual and
restrains his freedom to walk away, he has seized that person.” Adams, 205
A.3d at 1200 (citations and quotation marks omitted).
Moreover, we are mindful that a defendant’s location “in a high crime
area” and his sweating, which implies nervousness, are factors that may be
considered in determining whether a police officer possesses reasonable
suspicion. See Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super.
2009) (en banc); Commonwealth v. Cartagena,
63 A.3d 294, 304 n.24 (Pa.
Super. 2013). Nevertheless, under the totality of the circumstances test, “no
single factor controls the ultimate conclusion as to whether a seizure
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occurred—to guide the inquiry, the United States Supreme Court and this
Court have employed an objective test entailing a determination of whether a
reasonable person would have felt free to leave or otherwise terminate the
encounter.” Luczki, 212 A.3d at 543 (citation omitted). We also emphasize
that in order to establish reasonable suspicion, the officer “must be able to
articulate something more than an inchoate and unparticularized suspicion or
hunch.” United States v. Sokolow,
490 U.S. 1, 7 (1989) (citation and
quotation marks omitted).
A review of the record reveals the information present at the time Officer
McGowan stopped Appellee, asked for his identification and questioned him
was as follows. Four police officers were on patrol, all in an unmarked vehicle,
and were in uniform and armed. See N.T., 1/23/20, at 5-6, 50. They first
spotted Appellee in a parking lot of a restaurant, which was deemed a high
crime/high drug area, at 9:30 p.m. See id. at 5-7. Officer McGowan9
observed Appellee crawling on his hands and knees, for approximately one
minute, by a parked, albeit askew, truck that was turned off. See
id. at 7-8,
11, 30. The officer testified, “I just began watching him. I wasn’t sure what
was going on. I found it to be a little unusual.”
Id. at 8 (emphasis added).
The officer then drove towards his location and rolled down his window while
____________________________________________
9 At the time of the hearing, Officer McGowan had been a police officer for
over seven years and had special training in drug law enforcement. See N.T.,
1/23/20, at 4.
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Appellee turned around and looked at the car. See id. at 9. Officer McGowan
noticed that Appellee was “sweating profusely.” Id.10 The officer asked
Appellee “if he was okay, and he said that he had dropped something.”
Id.
Appellee continued walking and went inside the restaurant.11 See
id. Officer
McGowan again testified “it was a little bit of an unusual
encounter/observation, the fact that he’s on his hands and knees, and then
the way I saw he was sweating. I wasn’t sure what was going on.”
Id.
at 10 (emphasis added).
Officer McGowan then looked at the truck, noting that the parking spots
were on a diagonal, but the vehicle was parked straight, and the driver’s
window was “completely lowered.” N.T., 1/23/20, at 11. The officer stated,
“And as I started to think about everything, I became curious if the individual
was possibly, you know, intoxicated or impaired on alcohol or a controlled
substance.” Id. (emphasis added).
After Appellee exited the restaurant, Officer McGowan said that he
looked at the officers, and then turned to his right and began walking down
the street. See N.T., 1/23/20, at 11-12. It was at this point that Officer
____________________________________________
10 The uncontroverted testimony established the temperature that day was
86 degrees. See N.T., 1/23/20, at 33.
11 Deputy Edwards testified Appellee was in the restaurant for five minutes
and walked out with a soda in his hand. Id. at 69.
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McGowan, accompanied by Deputy Edwards,12 decided to ask Appellee if they
could speak to him. See id. at 12-13. Appellee complied. See
id. at 12.
Officer McGowan then asked for Appellee’s identification, as well as if Appellee
was on parole and whether he had anything illegal on his person. See
id. at
13-14. Appellee provided identification, while responding that he was on
parole and that he did not have anything on his person. See
id. Officer
McGowan then asked to search Appellee’s person, to which Appellee agreed.
See
id. at 15. Appellee put his arms up at a 90-degree angle with his body,
and then the officer checked his pockets. See
id. at 15-17. Finding nothing
in the pants pockets, Officer McGowan then “swept over [Appellee]’s groin
region” and felt a hard, distinct bulge.
Id. at 17-18.
On cross-examination, Officer McGowan was asked again about the first
encounter, where he observed Appellee crawling on the ground. N.T.,
1/23/20, at 31. The officer explained: “I didn’t know what was going on. This
could’ve been a medical issue. This could’ve been ─ I can probably think of
several different scenarios. I have no idea what was going on.” Id.
(emphasis added).13 Officer McGowan indicated that he did not recognize
____________________________________________
12 Officer McGowan stated they did not brandish a weapon or obstruct
Appellee’s ability to walk away from the location. See N.T., 1/23/20, at 14.
He also could not remember where the other officers were located. See
id.
at 37.
13 Additionally, the officer testified: “I made the observation of him sweating
profusely. But that as it was, crawling around on the ground by itself, you
(Footnote Continued Next Page)
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Appellee from any past encounters. See id. at 43. The officer also testified
that he did not remember radioing in to obtain information on Appellee’s
identification and he did not know if he handed it off to a partner to begin a
warrant check. See
id. at 44. Officer McGowan conceded that before he
started asking questions, he had no direct evidence that the improperly parked
truck was Appellee’s vehicle or that he had been driving it. See
id. at 45.
Rather, the officer made the assumption it was Appellee’s vehicle “based on
[his] close proximity” to the truck.
Id.
When defense counsel asked Officer McGowan about Appellee’s
demeanor, he responded Appellee was “[p]retty calm” and that “[t]here was
nothing out of the ordinary.” N.T., 1/23/20, at 48. The officer was also asked
what clues indicated Appellee was purportedly under the influence and he
testified to the following:
I would say the biggest ─ when [Appellee] got up off of the ground
and turned around and he observed me and was sweating
profusely, I would say that in that moment ─ I don’t know if
disoriented is the best word or caught off guard or maybe it
was his nervousness in seeing the police, but I would say that
was the best glimpse I had that something just seemed off.
And, again, I wasn’t sure at that time, was this a medical
condition? Was he nervous in seeing the police? Why is he
sweating? I just wasn’t sure initially ─ at that first contact.
____________________________________________
know, it certainly isn’t illegal. It caught my attention. And when I’d see[n]
him sweating profusely ─ again, I’m wondering what’s going [on], but he
walk[ed] into the store, and that was the end of our initial contact.” N.T.,
1/23/20, at 33.
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Id. at 48-49 (emphasis added).
Defense counsel also inquired about the second encounter ─ when
Officer McGowan stopped and questioned Appellee after he left the restaurant
─ the officer did not note that Appellee was “profusely sweating.” N.T.,
1/23/20, at 49. Officer McGowan stated that he never told Appellee that he
was free to leave and he “[p]robably” did not tell Appellee that he did not have
answer any of the officer’s questions. Id. at 50. Officer McGowan also never
informed Appellee that he had stopped him for a welfare check. See
id.
In addressing the Commonwealth’s argument that the entire interaction
between the Appellee and the police constituted a mere encounter and not an
investigatory detention, it is necessary to point out that the Commonwealth
does highlight certain facts from the initial meeting to support the search
during the subsequent encounter. This is apparent given the fluid nature of
the two interactions where the second encounter occurred almost immediately
after Appellee exited the restaurant, and there were no additional facts
concerning Appellee’s behavior or circumstances to consider. Indeed, this
Court has previously stated in a traffic stop situation, which generally falls
along the lines of a Terry stop as herein, that “a police officer may use
information gathered during an initial traffic stop to justify a second
investigatory detention, regardless of whether the officer has indicated at
some point during the initial stop that the subject is free to leave.”
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Commonwealth v. Galloway, 265 A.3d 810, 815 (Pa. Super. 2021) (citation
omitted).
However, the facts present at the time Officer McGowan stopped
Appellee and asked for his identification and permission to search his person
amount to the following: (1) Appellee was observed by the officers in a high
crime area at 9:30 p.m.; (2) he was crawling on his hands and knees by a
parked, albeit askew, truck that was turned off; (3) when Officer McGowan
first spoke with him and asked if he was okay, Appellee said that he was
looking for something; (4) Appellee was first observed sweating profusely on
a May night, when the temperature that day was 86 degrees; (5) Officer
McGowan saw that the driver’s side window of the truck was down, which he
caused him to be curious that the driver was intoxicated or impaired, but
Officer McGowan never intended to ask Appellee if he was the driver or to find
the driver; (6) the officers observed Appellee go into the restaurant, pace
around, and order a drink but not food; (7) Appellee came out of the
restaurant, looked at the officers, and then turned right and walked off; (8)
the officer did not perceive any indication that Appellee was in an intoxicated
state; and (9) as the trial court points out, there was no testimony that
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Appellee made any furtive movements or that Officer McGowan felt his safety
was at issue.14
It is clearly evident that these facts do not a support an objective
determination that “criminal activity [was] afoot.” Adams, 205 A.3d at 1200.
Officer McGowan repeatedly testified that he was “curious” of the
circumstances, that things seemed a little bit “unusual,” and that something
was off. However, as noted above, an officer “must be able to articulate
something more than an inchoate and unparticularized suspicion or hunch.”
Sokolow, 490 U.S. at 7 (citations and quotation marks omitted). Officer
McGowan’s testimony amounted to nothing more than a “hunch” that
something was amiss as his “reasonable suspicion” belief stemmed from the
fact that they were in a high crime area, the truck was not parked properly
even though he never connected Appellee to the vehicle, the fact that the
windows were down, and Appellee’s state of profuse sweating.
At this juncture, we turn to the Commonwealth’s reliance on Carter,
which we conclude is misplaced. In Carter, an en banc panel of this Court
concluded there was reasonable suspicion where police observed the
defendant in a high crime area, walking away from a known drug corner, with
a bulge in his coat pocket that appeared to weigh down the jacket, and
____________________________________________
14 See Trial Ct. Op., 6/30/20, at 8-9; see also Commonwealth v. Shelly,
703 A.2d 499, 503 (Pa. Super. 1997) (safety frisk allowable upon reasonable
suspicion criminal activity is afoot and suspect is armed and dangerous).
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repeatedly attempting to conceal the bulge in his pocket once alerted to police
presence. Carter, 105 A.3d at 766-67. Carter is factually distinguishable
from this case. Here, Officer McGowan did not testify that he observed a bulge
in Appellee’s clothing or that his clothing appeared to be weighted down. He
also never testified that when Appellee stood up after crawling on the ground,
he observed Appellee attempting to conceal an item in his pants. Rather,
Officer McGowan stated that after questioning Appellee, he made the decision
to search ─ first the pat down Appellee’s pockets which revealed nothing, and
then the sweep over Appellee’s groin area where he felt a bulge. The officer
never testified that Appellee was carrying anything in his hands that was
suspicious, that he saw Appellee engaging in any criminal activity, or that he
was concerned for his own safety.
With this in mind, we will now address the Commonwealth’s argument
that Officer McGowan’s request for Appellee’s “identification did not transform
the encounter into an unconstitutional detention.” Commonwealth’s Brief at
14.
We recognize that both 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.” Luczki, 212 A.3d at 543 (citation omitted). We
acknowledge that in Au, supra, the Pennsylvania Supreme Court opined:
“Pursuant to governing Fourth Amendment law, we hold that [an] arresting
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officer’s request for identification [does] not transform his encounter with [the
defendant] into an unconstitutional investigatory detention.” Au, 42 A.3d at
1009.15
However, the Pennsylvania Supreme Court recently revisited the issue
regarding a police officer’s request for a defendant’s identification in Cost,
supra. There, police officers were on patrol in a high crime area when they
observed the defendant and three other individuals in an alleyway. Cost, 224
A.3d at 642. “The officer suspected ‘there might be something going on back
there.’” Id. (record citation omitted). Concerned the individuals were
gambling or smoking marijuana, the police officer stopped his vehicle in front
of the alleyway to conduct an investigation. See id. at 634. He and his
partner announced that they were police because they were in plain clothes
and asked the individuals if they lived in the alleyway. See id.
Proceeding to ask if the individuals “had ID,” the officer testified
that all of them handed him identification cards of some sort. The
____________________________________________
15 In Au, the arresting officer stated that “while on routine patrol in the early
morning hours, his attention was drawn to an automobile parked in the lot of
a business premises.” Au, 42 A.3d at 1003 (record citation omitted). The
officer indicated “it was unusual to see a car in the location at such time, and
he decided to make further inquiry.” Id. (citation omitted). He “did not
activate the emergency lights of his police cruiser, but he positioned his
vehicle at an angle relative to the parked automobile so as to illuminate the
passenger side.” Id. (citation omitted). He stated he angled the car so as to
not block the egress of the defendant’s vehicle. See id. The officer then
approached the vehicle with a flashlight and asked the defendant for
identification. See id. When the defendant opened the glove compartment
to retrieve his identification, there were two baggies of marijuana. See id. at
1004.
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officer then asked “was there anything ─ you guys have anything
on you I need to know about,” to which they also said no.
The officer testified that [the defendant] was removing a
backpack, which prompted the officer to ask, “you have anything
in that backpack I need to know about?” At that point, [the
defendant] admitted that he had a gun in the bag. Subsequently,
the partner recovered a handgun.
Id. at 643 (record citations omitted). “According to the officer, [the defendant
did not] have to answer questions or produce identification; rather, his path
was unrestricted, and he could have ‘walked off at any time.’” Id. (record
citations omitted).
The Supreme Court noted:
Most jurisdictions agree that an officer’s mere request for
identification does not, by itself, transform what would otherwise
be a mere encounter into an investigatory detention. However,
jurisdictions are deeply divided concerning whether, or to what
degree, the retention, by an officer, of the identification
documents to search for outstanding warrants escalates the
encounter to a seizure.
Cost, 224 A.3d at 650 (citations omitted).
The Supreme Court then held “that the retention by police of an
identification card to conduct a warrant check will generally be a material and
substantial escalating factor within the totality assessment.” Cost, 224 A.3d
at 651. Applying to the facts of the case, the Court opined:
Coupled with other relevant factors in the case, we conclude
that the officer’s or his partner’s retention of [the defendant]’s
identification card to conduct a warrant check ─ as he was asked
if there was anything in his backpack that the officer needed to
know about ─ was sufficient to signify to a reasonable person that
he was not free to proceed about his business. Accord [State v.
Pollman, 190 P.3d 234, 240 (Kan. 2008),] (“[I]f a law
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enforcement officer retains a driver’s license, this can be a factor
considered in the totality of the circumstances and may, absent
offsetting circumstances, mean a reasonable person would not
feel free to leave without his or her license.” (emphasis added)).
The announcement of “police,” while perfectly understandable,
was an initial escalating factor. Albeit that the testimony on the
point is quite scant, viewing the record in the light most favorable
to [the defendant], it can be concluded that the officers (also quite
rationally) adopted a stance that would convey to a reasonable
person that such person is perceived as a potential threat.
Additionally, we agree with [the defendant] that repeated queries
whether there is anything that a police officer “need[s] to know”
about within a person’s possessions suggests some authoritative
right to know about the contents.
It is also significant, in our judgment, that there is no
evidence that the officer ever explained to [the defendant] what
he intended to do with the identification card. Rather, from all
appearances, once [the defendant] gave it to the officer, the
officer simply proceeded to do with it as he wished. Again, such
treatment of another’s property is a substantial escalating factor
in terms of the assertion of authority.
Id. at 652 (footnote omitted).
Here, the trial court found the facts were very similar to those in Cost,
and soundly explained:
Officer McGowan testified that he suspected something was “off”
about Appellee, approached Appellee on the street after exiting
Harrisburg Fried Chicken, asked Appellee for his identification,
Appellee provided his identification to Officer McGowan, and
Officer McGowan then asked whether he had anything illegal on
his person. While the testimony is not clear whether Officer
McGowan had Appellee’s identification card in his possession when
inquiring whether Appellee had “anything he needed to know
about,” viewing the record in the light most favorable to Appellee,
such conduct could convey to a reasonable person that he was not
free to leave; therefore, escalating the encounter to an
investigative detention.
Trial Ct. Op., 6/30/20, at 10-11.
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We agree with the trial court that Cost is applicable to the present
matter and, impliedly, that Au is not controlling. Officer McGowan did not
merely request Appellee’s identification like in Au. Rather, similar to Cost,
not only did Officer McGowan and his partner request Appellee’s identification,
but the officer asked additional questions, including whether Appellee had
anything on his person. Furthermore, like in Cost, Officer McGowan never
explained to Appellee what he intended to do with the identification card. A
reasonable person, in Appellee’s position, would not have felt free to leave or
otherwise terminate the encounter. Accordingly, Officer McGowan’s request
for identification coupled with investigating questions clearly demonstrated a
“substantial escalating factor” within the totality assessment that Appellee
was, indeed, subjected to an investigative detention. Cost, 224 A.3d at 652.
That assessment, in addition to our above-stated analysis that the
Commonwealth failed to establish that Officer McGowan possessed the
requisite reasonable suspicion that criminal activity was afoot to justify the
investigatory detention of Appellee, leads us to conclude the trial court
properly suppressed the evidence resulting from the detention.
To the extent the Commonwealth argues that Officer McGowan was
discharging his duties under the public servant exception of the community
caretaking doctrine,16 we find this assertion waived for failure to properly
____________________________________________
16 See Commonwealth’s Brief at 21.
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preserve it with the trial court.17 See Pa.R.A.P. 302(a) (“Issues not raised in
the trial court are waived and cannot be raised for the first time on appeal.”).
Lastly, because the police did not possess the requisite level of suspicion
to effectuate the seizure, Appellee’s consent to the search was vitiated based
on the taint of the immediately preceding illegal detention. See
Commonwealth v. Freeman, 757 A.2d 903, 909 (Pa. 2000) (determining
that the appellant’s consent was invalid, and the fruits of the search must be
suppressed, because the detention which led to the consent was illegal).
Accordingly, we need not address the Commonwealth’s remaining claims
concerning Appellee’s consent and the scope of the consent given.
In sum, we conclude the Commonwealth’s arguments are unavailing,
the trial court’s factual findings are supported by the record, and we discern
no error in its grant of Appellee’s motion to suppress.
____________________________________________
17 Even if the Commonwealth preserved the claim, we would determine that
based on the facts before us, Officer McGowan did not “point to specific,
objective, and articulable facts that would reasonably suggest to an
experienced officer” that Appellee was “in need of assistance.” Livingstone,
174 A.3d at 634 (citations omitted). Rather, as noted above, the officer
testified that Appellee’s situation “could’ve been a medical issue” but that he
had “no idea what was going on.” N.T., 1/23/20, at 31. Moreover, when the
officer observed that Appellee was sweating, he testified that he “wasn’t sure
at that time” if this was “a medical condition[.]” Id. at 48-49.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2022
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