Commonwealth v. Bradley

Super 1999 PA Pennsylvania,

COMMONWEALTH

Appellant BRADLEY, Appellee. P.

Thomas

Superior Pennsylvania. Court of

Argued May

Filed Jan. granted

The trial Sup- court the Motion to press. requested The Commonwealth suppression the trial court reconsider rul- its ing, request. but the trial court denied that timely Commonwealth then filed this appeal.1 Joseph Daly (“Daly”), Superinten- police department dent of Lower Mer- Township, Bradley’s suppres- ion testified at that, hearing May sion on he was Township and was in Haverford that, driving Daly to his home. stated p.m., 10:05 he observed in front hiro automobile, by Bradley, driven swerve into opposite Daly lane of traffic. testified that he was concerned for other motorists on road; therefore, he called the Haverford Township Department Police on his car ra- Daly Bradley dio. said that he followed and continually updated the Haverford Department concerning Bradley’s Police lo- cation and direction of travel.

¶ Dаly testified he then saw Brad- turns, ley exaggerated make more two drive wrong highway, nearly on the side of the and Kovach, Atty., A. Sheldon Asst. Dist. Me- telephone that, pole. Daly strike a said dia, Com., appellant. for the Bradley pulled when parking into a church stopped, parked Daly lot and his car in front Media, Donaghy, appellee. Andrew for Bradley’s. According Daly, he then McEWEN, Judge, Bradley’s door, Before President opened walked to SOLE, KELLY, POPOVICH, DEL engine, Bradley’s FORD turned off the and took ELLIOTT, JOYCE, MUSMANNO, that, keys. Daly ORIE Bradley testified after SCHILLER, was, MELVIN and problem JJ. asked what the told Bradley that he was an MUSMANNO, J.: Township police and that Haverford officers coming to the were scene. then told appeals 1 The Commonwealth from the Bradley to sit there and not to cause suppressing trial court’s Order Daly kept Bradley trouble. under observa- Appеllee this case in which Thomas waiting tion while for the Haverford Town- (“Bradley”) prosecuted driving under ship police officers to arrive. When Haver- the influence. See 75 Pa.C.S.A. 3731. We officers, Township police Cheryl ford affirm. Moore, arrived, Daly Williams and Charles May was arrested on gave Bradley’s keys to Officer Williams 1996 for under the influence of alco- told her of his observations. pre-trial Suppress hol. He filed a Motion to that, claiming sup- that his arrest was 5 Officer Williams testified at the therefore, against pression hearing approached all evidence him obtained when she car, suppressed. Bradley’s strong that arrest should be she detected a odor of order, suppression original 1. In an of a the Com- make that certification its Notice of However, required certify Appeal monwealth is its notice of filed on December appeal that the order will terminate or substan- Commonwealth filed Amended Notice of tially handicap prosecution. Appeal, required Pa.R.A.P. which contained the certifica- 311(d). In this the Commonwealth did not tion. Bradley’s eyes alcohol and noticed that were 8 At conclusion glassy and bloodshot and hearing, the trial court determined that speech slow and slurred. Officer Moore Bradley illegally. arrested that ba- had On sobriety testified that he conducted field sis, suppressed trial all evidence court Bradley, which tests failed. tests on after the arrest. The Common- obtained placed Bradley under Officer Williams then that, fol- appeal for the wealth contends on arrest. reasons, erroneously trial court lowing the (1) Suppress: to granted Bradley’s ¶ Motion Bradley that four testified hе had had therefore, and, as a citizen acted evening May the alcoholic drinks on of (2) Bradley; Daly acted legally arrested and that, He as he that stated was legally, acting if even not night, following car him he noticed that a Daly and the interaction between appeared high to its Brad- because have on beams. nothing was more than “mere en- ley parking said that into a a church lot, thinking following that a friend him. was counter.” that, after the car that had stated him, reviewing him in been front of an order When approached Bradley, motion, the driver told granting suppression a “we must he was that and only of the consider the evidence defendant’s grabbed Bradley’s keys. Bradley testified and so much of the evidence of the witnesses by that he a thought he was under arrest as, in the prosecution read the context of Township Haverford police offi- undercover whole, record as a remains uncontradicted.” cer. Francis, 700 A.2d Commonwealth v. (Pa.Super.1997). If rec the evidence of Daly’s statement, prepared written supports findings, court’s then ord the trial request the of the Haverford Po- by findings appellate court is bound those Department, lice was the tes- consistent with may only legal if and reverse conclusions timony gave at the from erroneous. statement, drawn them are Id. hearing. In that indicated that, years my police experi- “[f]rom of ence, officer acts un When my opinion opera- it was ... that the jurisdiction, der color of state law outside his tion of the that of vehicle consistent with to drugs pursuant someone or his actions are deemed unlawful under influence of Municipal alcohol.” Police Jurisdiction Act.2 Com- pursuit person 2. The Police Jurisdiction Act limits the of the after the of commission police officer to of a make arrests and the offense. perform police pri- (3) functions outside his or her requested to Where the officer has been mary jurisdiction local, unless ex- certain enumerated any aid or assist State law or Federal ceptions occur: park police or or enforcement officer officer probable otherwise has cause to believe (1) acting pursuant Where the officer is to need of aid the other officer is in or assistance. by an order issued a court of record or an (4) prior Where has the officer obtained by magistrate order issued district whose officer, or consent of the chief law enforcement magisterial judi- district is located within the consent, by give person to authorized him juris- primary cial district wherein the officer’s organized agency law enforcement which situated, diction is where or an officer is other- provides primary police political services to a acting pursuant requirements wise to the of the beyond pri- subdivision which officer’s Procedure, Pennsylvania Rules of ex- Criminal jurisdiction mary jurisdiction to enter the other cept that service of an or search arrest conducting purpose duties for the official require the warrant shall consent of the chief arise within his which from official matters person law or autho- enforcement jurisdiction. primary consent, give organized rized him to (5) Where the officer is on official business agency pro- regularly law enforcement which offense, probable and views an or has cause рrimary police municipali- vides services in the committed, has been believe an offense ty wherein the warrant is served. be identify makes a effort him- (2) and reasonable any pursuit Where the officer is hot committed, is a self as a officer and which offense person any offense which was misdemeanor, peace felony, or breach of the probable or which he has committed, cause to believe presents clear primary jurisdiction other act an immediate within his which persons property. present danger fresh for which offense the continues in charge monwealth v. 543 Pa. and arrested the defendant on a (1996); Brandt, influence, Commonwealth v. 456 driving under the a misdemeanor Id., offense. denied, that, 13 The Court Price first noted circumstances, exclusionary ap- such rule statute, pursuant agent, to a federal an FBI plies,3 evidence obtained as a result if capacity, a law enforcement is not suppressed. of the officer’s actions must be authorized make an arrest for a misde- Brandt, exclusionary 691 A.2d at 939. The meanor offense without a warrant. See id. at applies rule if even officer acts in 3052). (citing 672 A.2d at 282 18 U.S.C. good faith or the officer’s actions Thus, the Court stated because the performed would have been lawful if within proper jurisdictional agent had limits. Id. arrested4 the defendant for a mis- warrant, demeanor offense without a the ar- ¶ argument, 11 In its first the Common- legal only agent if rest could have been the dispute wealth does not acted out- Price, private acted as a citizen. See 543 Pa. jurisdiction. proper side his Nor does the 407-08, at 672 A.2d at 282. The Court then that, dispute Daly, acting Commonwealth if agent had held because the used the law, Bradley, under color of state arrested lights car and and siren on his showed his then acted without under the FBI badge, agent engaged the had con- Municipal Police Jurisdiction Act. Rather the Daly, assuming fairly Commonwealth contends that duct which be “could attributed the Bradley, legally 411, arrested acted be- state.” Id. at 672 A.2d at 284. The acted, law, cause he not under color of state Court therefore concluded that the arrest but as a citizen. thereaf- and all evidence obtained 413, suppressed. ter should Id. at ¶ have been Supreme 12 Our has determined Court 672 A.2d at 285. that a law enforcement officer acts under if, light color of state law “in of all the Earlier, 14 v. Eshel Commonwealth circumstances, regarded [the must be officer] man, 93, 477 A.2d 838 ‍​‌‌​‌​​​‌​​‌‌‌​​​​​‌‌​‌‌​‌​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​​‌‍our Pa. having agent as acted as an ‘instrument’ or of determined that an Court Price, 410, the statе.” 543 Pa. at officer, police proper auxiliary outside his 548, (quoting Corley, 507 Pa. at 491 A.2d officer,” jurisdiction, police acted “as a not as 832). agent at In an FBI had packages when he of found the defendant after the defendant had failed marijuana belonging in a car to the defen stop stop sign his vehicle at a and had property of the defendant’s dant on the oncoming swerved into traffic. at 543 Pa. grandmother. Id. at 383 A.2d at 842. agent 672 A.2d at 281. The had used Apparently, looking for the officer had been police lights the and siren on his unmarked property of on the when he friend his defendant, stop vehicle to the him- identified pack car and the stumbled found agent, self to the defendant an FBI ages A.2d at 839. The inside. Id. at Id., badge. showed the defendant his package police to his officer then took one addition, smelling A.2d at 281. In after department рolice barracks and then to state emanating odor alcohol from the defen- package dant, it that the where was determined agent told the to remain defendant 96-97, Id., marijuana. Id. at 383 A.2d seated in his vehicle. contained police Local then came to the scene at 839-40. officers (6) exclusionary Where the officer views an offense which 3. The rule derives from Fourth Amendment to the United States Constitution felony, probable is a or has to believe cause I, Pennsylvania 8 of the Con- Article Section felony that an which has been offense 939; Brandt, 691 A.2d at see also stitution. committed, and makes a reasonable effort to Corley, Commonwealth v. identify police himself as a officer. (West See 42 Pa.C.S.A. 1982 and West Supp.1998). agrees The agent, apparently that the 4. The Court assumed exceptions nonе listed Section 8953 police, actually and not the local “arrested” the apply in this case. defendant. law, his actions with if of state that the under color 15 The Court noted Brad- legal because respect “without au- were acting as a and, thereaf- stopped his car ley voluntarily Police Jurisdic- thority” under Bradley until ter, Id. at Daly only briefly the defendant’s car. detained tion Act to search police officers ar- then ruled 383 A.2d at 842. Court the Haverford rived, Bradley’s intoxi- “was officer that the officer obtained it package cation, Bradley. and turned es- when he removed arrested and then the officer police” sence, argues to the both because over the Commonwealth suspi- packages looked had testified that the only a “mere encounter” engaged in he had cious to him based on information a seizure Bradley, which did not constitute concerning the station received at the Fourth meaning within pack- marijuana typically is manner in which States Constitu- Amendment to United taken the officer had aged, and also because tion. police station to be package to the 100-01,

opened. Id. at 841-42. be first note that contact 19 We that the evidence The Court thus determined can and a tween an individual encounter, should have been the officer obtained a non as a mere be characterized A.2d at suppressed. detention, Id. at 842-43. custo investigative custodial detention, Com or a formal arrest. See dial in this have reviewed the record We Peters, 642 v. 434 monwealth present- conclude that the evidence case and (1994), denied, 538 1129 A.2d hearing supports Bradley’s suppression at ed en A mere Pa. findings. suppression court’s factual police consti with a officer does not counter Furthermore, applicable based on the law the Fourth Amendment tute a seizure under recited, sup- that we have we hold that the and, therefore, pro triggers no constitutional correctly pression court determined Peters, Investi A.2d at 1129. tections. 642 Bradley’s Daly illegally regard to acted with detentions, and formal gative and custodial arrest. however, arrests, implicating are seizures ¶ that, Daly 17 based on his stated rights. Id. constitutional police twenty-six years experience Bradley was he had concluded that ¶ In we conclude 20 this Moreover, Daly’s intoxicated. while that, Daly “arrest” even if did not reaching {e.g., actions after that conclusion determined, court evi suppression maintaining radio contact with the Haverford supports a conclusion dence Department, Police investigative detention of engaged in an least car, Bradley, stopping Bradley’s front occurs investigative detention Bradley. An identifying police taking himself as temporarily detains a police officer when a Bradley to re Bradley’s keys, ordering a show by physical force or person means of waiting car while for additional main investigative purposes. Id. authority for arrive) with police are consistent officers police who has been trained those of a officer Court, in Common Our intoxi stops traffic and deal to conduct with 484, -, Mendenhall, 715 552 Pa. wealth Thus, cated drivers. we conclude recently set forth the state,” not as an ‘instrument’ of the “acted as investigative distinguish between test to respect as follows: mere encounter and a detention 410-11, Pa. at arrest. See whether, considering pivotal inquiry is “[T]he court, A.2d at 283-84. [surrounding circumstances all the facts and therefore, ob properly suppressed and an between an interaction Bradley’s arrest. tained after individual], would [individual] a reasonable by the being ¶ was restrained” thought have he Com- argument, In second its so, investiga- then an Id.5 If police officer. even if acted monwealth contends U.S. 544, 554, at -, Mendenhall, 64 L.Ed.2d 100 S.Ct. 5. See Mendenhall, (1980) ("[A] within the person been ‘seized’ has (citing United States v. not, officer, taking Bradley’s keys, telling tive detention has occurred. See id. If then a any mere encounter has occurred. Id. “sit there” and not cause trouble, authority demonstrated such that a ¶ 22 “The line between a mere encounter person thought reasonable would have investigative pre and an detention cannot be he or she was not free to leave the scene. cisely myriad daily defined because of the at -, See id. 715 A.2d at 1120. policemen situations in which and citizens confront each other on the street.” Id. at conclude, therefore, 25 We that at least -, (quotations 715 A.2d at 1120-21 investigative detention occurred in this omitted). Mendenhall, example, Accordingly, Bradley protected ease. proper jurisdiction officer left his illegal from an detention the Fourth render aid and assistance at the scene of a Amendment. Because acted under col- at -, vehicle accident. Id. or of state law and without under there, 1118. Once the officer told the defen Act, Police Jurisdiction dant, apparently who had been involved in Bradley legally. could not have detained truck, the accident with his to “stick around” Thus, any evidence obtаined after the until state officers arrived. Id. at properly suppressed by detention -, 715 A.2d at 1118-19. While court. trial officers, waiting for the state the de ,26 Order affirmed. attempted fendant'entered his truck and place keys ignition. several into the Id. at JOYCE, file POPOVICH and JJ. -, 715 A.2d at 1119. The officer “did not Dissenting Opinions. attempt try to restrain the defendant from ing to start his vehicle or otherwise ‍​‌‌​‌​​​‌​​‌‌‌​​​​​‌‌​‌‌​‌​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​​‌‍restrict MELVIN, joins Judge J. ORIE defendant’s movements other Dissenting Opinion. POPOVICH’s at -, way.” Id. 715 A.2d at 1119. POPOVICH, J., dissenting: 23 The Court determined that opin- respectfully I dissent from the only the officer’s actions constituted majority ion of the to the extent that it mere encounter with the defendant and not Superintendent Joseph Daly concludes acted investigative detention for the state, as an instrument of the not as a record, “[Njothing reasons: in the from aside respect to his encounter with ... telling [the][o]fficer the defendant Rathеr, appellee Bradley. agree Thomas around,’ ‘stick evidenced an exercise of force argument that un- with the Commonwealth’s or demonstration of that would case, Superintendent der the facts of this person [have] to a reasonable that indicatefd] Daly citizen and his Rather, [he or she not free to leave. was] action. conduct did not amount state freely the fact that the in defendant moved Therefore, I am the lower convinced strongly suggests and out of his vehicle suppressed all evidence court erred when it person a reasonable in the defendant’s shoes - - off-duty, plain-clothes derived offi- from [have would free to leave.” Id. at felt] conduct, exclusionary rule does cer’s and the -, 715 A.2d at 1120-21.6 apply. Consequently, would reverse Applying specified the test in Men- below and remand the decision of the court denhall to this we conclude that rea- for trial. person sonable in circumstances ¶ 2 reviewing would the Common- by Daly’s have felt restrained actions. “When Daly, by parking Bradley’s, sup- of the his car in front of wealth’s from the decision court, telling Bradley only pression he was an ‘we must consider if, Code, only meaning of the Fourth Amendment in Vehicle to remain at accident, surrounding view of all of the circumstances the scene of an the officer’s direction to incident, person a reasonable would have be- the defendant to remain until arrived leave.”)). lieved that he was not free to itself, into did not "in and of turn encounter Mendenhall, investigative an at - - -, detention.” 6. The Court further reasoned because 715 A.2d at 1120-21. duty driver has an affirmative under the Motor car, 37.) Daly got out walked appellee’s ... then evidеnce of the witnesses car, opened Defen- prosecution over to the Defendant’s so much of evidence for the in, turned off the record as a dant’s door and reached as read the context of the keys whole remains uncontradicted.’ Common the Defendant’s ignition and took Baer, 36.) Pa.Super. (N.T., According v. to his wealth at 11/4/96 (1995) (citation omitted). 1058, 1058 ‘If the him- testimony, Chief identified own supports findings the factual in- duty police an off self as court, findings, there”, trial we are such bound “just sit structed the Defendant may only legal reverse if the conclu and we explaining that the Haverford drawn are in error.’ Com sions therefrom (N.T., at way. police were on their 11/4/96 Pa.Super. Espada, monwealth v. 11.) agreed took his Defendant omitted).” (1987) (citation keys himself as and identified Brandt, Commonwealth 36.) (N.T., Of police officer. at 11/4/96 934, 936 stated, encоunter, “And this Defendant thought I was under arrest didn’t know -1 ¶ Herein, the Commonwealth raises undercov- though ... I it was a Havertown following issue for our consideration: (N.T., whatever.” agent er 11/4/96 in rul- “Whether the court erred “— 36.) Defendant further testified off-duty, out-of-jurisdiction police ing that an minute, somebody there was within a chief made an arrest when while on his (N.T., there, officer there.” there was an home, way being he followed a car driven 38.) the radio used Chief an erratic and when the and reckless manner 11/4/96 location, report his the Defendant’s stopped, the road and the chief car left car, it, caused the keys drove an unmarked in front of removed the other car’s over, him, took pull bloek[ed] ignition from the and instructed the driver to Defendant as an momentarily.” keys, identified himself wait for the who arrived Defendant’s p.4. the Defendant with Reargument, Commonwealth’s Brief on officer and detained Township police point, More to the sub- Haverford the uniformed essence, jurisdiction police mits that out offi- immediately “[t]he on his tail. Chief civilian, cer’s conduct did not constitute state action as an not as acted and, therefore, exclusionary inap- rule of his freedom. depriving the Defendant Supplemental plicable.” Commonwealth’s Daly conducted jurisdiction, Chief Without Reargument, p. Brief on 2.7 an unlawful arrest. deciding In that all evidence which Opinion, pp. 7-8. Trial Court Superintendent Daly’s actions

resulted from briefs, the My parties’ of the 5 review suppressed, must be the rea- lower court record, reveals that pertinent case law soned: court, relying upon Commonwealth the trial above, principles Applying the set forth (1996), 403, Price, Pa. 672 A.2d 280 v. 543 Daly displayed it is cleаr that Chief con- suppressed all the evidence erred when it fairly duct which can be attributable to the Superinten- which the seized regard- state and that Chief must be present- Daly’s Upon the facts dent actions. having or ed as acted as an instrument ed, Superintendent did not I find that agent private of the state rather than agent of the state. act as an instrument or Daily citizen. trailed the Defendant [sic] evi- Accordingly, I do not believe that the proximity to cause the at such close as should have (N.T., from his actions dence derived pull Defendant off the road 37.) Amend- suppressed under the Fourth been at In an car unmarked owned 11/4/96 or (N.T., United States Constitution Township, ment by Lower Merion 11/4/96 1, Pennsylvania Constitu- 9), 8 of the pulled in Article front of defen- Chief (N.T., blocked him. tion. dant and 11/4/96 authority stop statutory Superinten- possess

7. The Commonwealth concedes that Township. See Daly, in Haverford an officer of the Lower Merion Police arrest dent jurisdiction §§ Department, and did 8951-8954. was out of his agent FBI and showed Price Presently, agree self as an his Common Superintendent badge. Upon smelling wealth’s the odor of alcohol assertion ap Price, nearby acted as a citizen he Agent when asked resi Sites proached Bradley’s opened Although the car police. Agent dent to call the Sites door, Bradley’s keys igni arrest, removed from the never told Price was under he he did tion, off-duty police identified himself as an tell Price to not move and remain seated Bradley that the Haver- po officer and informed until the arrived. After the local - arrived, ford Police had been notified. Agent briefed the officers lice Sites present finding, so I find the facts distin and, request, prepared at their on events guishable from those of similar cases such as report the incident. a written of Price, Kiner, supra, Commonwealth v. ¶ Applying principles Corley, of su- (Pa.Super.1997), A.2d 262 v. Commonwealth pra, our Court stated: Bienstock, 299, Pa.Super. 673 A.2d 952 (1996) Gommer, and Commonwealth v. Agent convincingly .. .it is clear that 571, (1996), 665 A.2d 1269 alloca which can displayed Sites here conduct (1996). denied, 676, tur 546 Pa. “fairly to the state” and be attributable regarded as hav- Agent must be Sites 7 In critical fac- “[t]he agent ing acted as an “instrument” or of purposes determining tor of whether Appellee. stopped the state when De- state action is involved is whether the individual, circumstances, spite assertion to the the Commonwealth’s light of all the contrary, Agent lights Sites’ use of regarded having must be acted as an Price, equipped on his un- agent ‘instrument’ or of sirens which were the state.” vehicle, together with citing government marked 540, 548, badge, ‍​‌‌​‌​​​‌​​‌‌‌​​​​​‌‌​‌‌​‌​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​​‌‍Corley, displaying his FBI is rele- his and, citing vant, indeed, Coolidge Hampshire, v. New of our determinative 2049, 29 403 U.S. 91 S.Ct. case involves conclusion that the instant L.Ed.2d Where the relation- simply It cannot be denied state action. ship person committing between the Agent display of author- Sites’ obvious wrongful acts and the state is such that those ity when he imbued [Price] emanating such, from the acts can be viewed as we official aura. As action with an state, principles estab- escape cannot the conclusion Corley, supra, lished in warrant a and that no state action was here involved Upon state action. 672 A.2d at 284. subsequent can erase that taint. action comparison judice the facts sub to those of Price, 672 A.2d at 284. cases, Superin- similar convinced that am Daly’s invоlvement with did tendent acknowledge that Presently, Su action, not rise the level of state but were perintendent Daly tell that he did merely responsible citizen who those just and “to sit was an admirably his concern for the demonstrated keys from there” and did remove safety public. N.T., 11/4/96,pp. 36. How ignition. ever, acts alone are First, Price, I am not convinced those supra, in our Superintendent Daly’s Special Agent sufficient to elevate found that the actions of Court ordinary citizen to that from that of an of the Federal Bureau of Investi acts Mark Sites my opinion, the acts gation state action when he of the state. In amounted to per vehicle, Superintendent Daly refrained from stopped Price’s and defendant James per telling those he Agent forming of are more than evidence seized as result Sites’ pull not supрressed. Superintendent After did actions should have been formed. Rather, Bradley stop stop appellant’s vehicle. observing sign Price fail to at a and over traffic, into the church Agent unmarked vehicle on-coming then swerve into his impression parking upon of lot the mistaken police lights activated the and siren Sites and, somebody- wanted eventually, that “a friend or who his unmarked FBI vehicle N.T., 11/4/96, him his car. Agent Price. Sites identified [him]” minutes, on-duty and Superintendent Daly ty an officer arrived p. 36.8 did not activate police Eventually, lights or sirens his unmarked car. Kiner. Kiner was con- arrested clothing driving He was civilian and did show influence of alco- victed of under the Bradley badge. his identification hol. Superintendent Daly the mat did not discuss review, Upon Trooper we found “just Bradley, except him to ter with to tell to an arrest of Gephart’s aсtions amounted want [don’t] trouble[.]” sit there and Trooper Gephart’s Clearly, Kiner. action N.T., 11/4/96,p. Finally, 11. Haver- the first ... with an official aura.” were “imbued only arrived moments after ford Price, Presently, Superin- 672 A.2d at 284. Superintendent Daly Bradley’s keys. took parallel to Daly’s tendent actions bear little Superintendent Daly’s

Aside from statement Trooper Gephart. Superintendent those of off-duty police that he was an Daly, informing Bradley that he other than officer, were of offi there insufficient indicia nothing was an did authority finding cial to warrant a of state acting authority indicate that he was under Thus, readily action. case upon by him conferred the state. Price, distinguishable supra, from where Agent there was abundant evidence that Bienstock, supra, 13 In ... Sites’ actions were “imbued with an offi presented we were cial aura.” agent questiоn with the of whether an of Kiner, 11 Likewise in the recent of case Liquor Pennsylvania State Police Bureau of action, supra, where this court found state Enforcement was Control the indicia of official were consider- performed stop citizen when he a traffic ably greater than those before us now. Therein, defendant Richard Bienstock. Offi- Kiner, supra, Gephart, an William the defendant cer Trusal noticed unmarked, trooper, driving pri- state his driving erratically that the and also observed vate vehicle and noticed defendant Kenneth front of defendant’s vehicle was smashed. driving erratically. Kiner his vehicle Trusal, un- travelling Officer who was an and, trooper parking followed Kiner into a lot vehicle, siren, marked activated his given opportunity, approached when Kin- approached him the defendаnt and directed trooper displayed er’s vehicle. The then pull nearby parking lot. his vehicle into weapon badge, his handcuffs identi- Finding the defendant incoherent with nu- Pennsylvania Trooper fied himself as State damage conflicting merous stories about the smelling to Kiner. After strong odor of to his Officer Trusal radioed the alcohol, Trooper Gephart ordered Kiner out Later, state for assistance. the defen- requested his vehicle and Kiner’s driver by Trooper Marvin dant was arrested Wal- Kiner, trooper license. The then handcuffed charged lace under the in- keys, took his ordered him to stand next to fluence of alcohol. his vehicle and told him that he was “under on-duty Although

detention” until evidence of officer arrived there was no trooper suspected because the Kiner driv- Trusal identified himself as whether Officer ing Trooper badge under the influence of alcohol. showed his or informed arrest, Gephart physically that he was we af- also restrained Kiner defendant under holding approximately suppress his arm. After twen- firmed the lower court’s decision Superintendent Daly display any signs did not To the extent that the lower court’s decision to suppress herein was based its authority through compelled official which he Superintendent Daly [Brad- “caused Further, stop his vehicle. the lower over,” ley] pull reject finding to I this of fact Superintendent of fact that court’s absolutely support because it has no in the rec- Bradley's supported vehicle also is not “blocked” Brandt, (appellate ord. 691 A.2d at 936 court is Superinten- by the record. While it is clear that findings not bound factual for which there is Daly parked dent his car in front of record). support Superintendent no in the While equally Bradley clear that could it is Daly's Bradley following may given act of have park- backed his vehicle out of the church have Bradley's Daly was a rise to mistaken belief that N.T., 11/4/96, ing public pp. N.T., 11/4/96, a road. friend, lot onto p. it did not “cause" words, Bradley stop to his vehicle. In other 37. same level of official action as those of Cor- the evidence seized as a result of Officer poral Superintendent Daly Damore. While because “there was sufficient Trusal’s actions off-duty police identified himself as officer for the trial court to indicia official conduct possession Bradley’s keys, he did and took that Trusal’s action constituted state find in a manner not conduct himself consistent Bienstock, action.” 673 A.2d police acting a officer within the with that of actually dеmonstrat- fact that Officer Trusal scope Superintendent of his official duties. ed, authority by activating his si- his official Bradley stop did not direct to his vehi- directing the defendant where to ren cle, Bradley suspected he did not inform quite stop dispositive. vehicle This is his was him of while intoxicated and did not present from the case where Brad- different advise that he was under arrest. pulled parking ley admittedly into the church stopped thought Further, lot and he “a because an arrest has “[w]hether somebody light friend or who wanted was in of the reason- [him]” been made is viewed N.T., 11/4/96, conveyed person p. impression car. able to the- sub- facts, Superinten- jected rather than in terms of to the seizure Clearly, present under the police subjective views of the officer mak- dent did not exhibit official au- Kiner, ing the arrest.” thority by compelled which he Carter, quoting, stop his vehicle. 233, 246, Upon factually 15 The case most similar to us, reject Bradley’s facts before claim Gommer, supra. case is that of him it was for to believe that he reasonable Therein, Corporal Penn- Lisa Damore of the telling was under arrest. Other than Brad- sylvania State Police observed defendant police ley off-duty he was an operating Robert Gommer his vehicle a Superintendent displayed no evidence him into a reckless manner and followed authority. opine that a reason- of official McDonald’s restaurant. When Gommer person by person claiming a able confronted window, pulled away from the “drive-thru” and, off-duty police yet, to be an officer Damore, Corporal off-duty who and not authority, showing signs no outward would uniform, pull signaled for him to over. persоn’s request at least to view the identifi- trooper, di- She identified herself as state badge. making cation or Without such him arrival of other rected to await the request, Bradley could not know whether he troopers, informed him that she believed was, claimed, Superintendent Daly the influence operating his vehicle under police or a citizen possession of of alcohol and took Gommer’s avoid who claimed to be able to leave the keys so that he would no be confrontation with while he waited facts, we in his car. Based on those scene to arrive. Based for the though Corporal Damore “[E]ven stated: Bradley-’s presented, facts find that belief uniform, conduct- duty was off and not she by a “Havertown under- that he was arrested and was ed herself in an official manner agent” was not reasonable. сover officer when she today, I not in- By my decision do Gommer, 665 over vehicle.” [Gommer’s] Police tend to emasculate Jur- that the Although at 1273. we found 8951-8954, Act, §§ isdiction Pa.C.S.A. scope acting “acting within the officer was municipal author- which limits officers’ employment of the State her as member primary jurisdiction to ity beyond their act vehicle she [Gommer’s] Police when specific six situations. See rejected suspicion driving,” we of drank 8953(a); Brandt, My A.2d at 937. that he was “arrested.” Gommer’s assertion power give unfettered decision does Rather, Gommer, at 1273. we clothing officers in civilian that the nature of the encounter was found jurisdiction. primary act of their outside investigative detention.” that of “a brief Rather, I submit that we must scrutinize Gommer, 665 A.2d at 1273-1274. if particular circumstances of each exists, off- Superinten- action then the actions of the Presently, I find ‍​‌‌​‌​​​‌​​‌‌‌​​​​​‌‌​‌‌​‌​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​​‌‍that state out-of-jurisdiction fall duty, officer must Daly’s not even rise to the dent actions did JOYCE, J., specifically dissenting: within one of the six enumerated Municipal eases set forth in the Police Juris- respectfully disagree I with the ma- 8953(a). § Act. 42 diction Pa.C.S.A. In the jority suppressing regarding the evidence ob- majority, unlike the I believe Bradley, Appellee, tained that Thomas was authority, that there is a dearth of indicia of majority driving under the influence. The I Superintendent and have concluded that Joseph Superintendent has determined not was a “state actor” at the time he an instrument of the state acted as Bradley’s keys. Consequently, took I do not scope Municipal Police outside the of the Municipal believe that the Police Jurisdiction Act, 8953 when Jurisdiction applies.9 Act Appellee, Bradley. I encountering Thomas sum, opine Superintendent 19 In agree. cannot acting was not as “an instrument of the approached Bradley’s stopped state” when he majority correctly set forth the off-duty po- identified himself as requirements review and the un- standard of keys lice officer and seized the Municipal der the Police Jurisdiction Act.10 vehicle, since there was insufficient indicia of However, majority appeal’s to overlook authority. Superintendent Daly official did key principles governing statutory inter- every that which citizen should do when con- pretation. part, pro- In relevant the statute driver, possible a fronted with drunk and the vides: mere coincidence that he was an (a) Any duly employed mu- General rule — officer at the time does not warrant nicipal police officer who is within this suppression gath- of the evidenсe which was Commonwealth, beyond but the territorial ered as a result his civic-minded actions. primary jurisdiction, shall limits of his Accordingly, I would reverse the decision of power authority have the to enforce the court below and remand for trial. other- the laws of this Commonwealth or MELVIN, joins perform Judge 20 ORIE wise the functions of that office as J. Dissenting Opinion. enforcing performing POPOVICH’s if laws or those those Recently, Supreme Municipal 9. our Act was not violat- Court rendered its deci- Police Jurisdiction Mendenhall, ed, sion in the case of Commonwealth v. of Mendenhall’s blood alco- wherein our hol test and statements was not warrant- results high on-duty police court held that an Mendenhall, -, ed. 552 Pa. at engages who in a "mere encounter” with a de- primary jurisdiction fendant outside of his has Mendenhall, Court, Clearly, Supreme our not violated Police Jurisdiction supra, did address the issue which we face not Mendenhall, Roofner, supra, Act. In Officer presently, Superintendent Daly whether to-wit: on-duty policeman driving po- a uniform Mendenhall, supra, was a "state actor.” In Offi- cruiser, lice went to an accident scene outside of obviously vested with the au- cer Roofner jurisdiction to see if he could render first aid state, thority given his arrival in a arrived, or other assistance. When he saw appearance cruiser and his However, in a uniform. pick-up against utility pole red truck smashed there I have herein determined that standing along and Mendenhall side the truck. indicia of official were insufficient Roofner, by Upon inquiry Officer Mendenhall Thus, I need warrant a of state action. admitted that he was the driver of the truck. Mendenhall, question presented reach the The оfficer then informed Mendenhall to remain out-of-jurisdiction supra, of whether there was an at the scene until the State Police arrived be- Municipal Police detention which violated the reportable. cause his accident was Officer Roof- thus, Act, suppression. warranting Jurisdiction attempt ner did not to restrict Mendenhall's movements, and Mendenhall even entered the matter, my agree- an initial I must note As key attempted place vehicle and in the dissenting opinion my distin- ment with the ignition Upon of the arrival of a state truck. colleague, Judge Popovich. agree guished trooper, un- Mendenhall arrested for Superintendent Daly act- his determination that der the influence. respects throughout ed as a citizen in all _ "totality Based circum- Appellee. Superin- Even if his encounter with stances,” our Court determined that tendent was not Officer Roofner’s and Mendenhall’s interaction however, my separately write to voice concerns only amounted to a “mere encounter.” Since majority's interpretation of the Munici- out-of-jurisdiction "investigative over the there was not an Roofner, pal Jurisdiction Act. Officer Police detention” Mendenhall and unreason- contrary would be absurd limits of his functions within the territorial primary jurisdiction in the able.

cases:... ¶5 Further, meaning plain (5) on officialbusiness provides the officer is governs. Where The statute statute offense, probable probable or has and views an has cause to believe an officer who has been to believe that an offense offense has been cause that a certain delineated committed, committed, effort may and makes reasonable enforce the laws of the Com- identify himself as a officer and not indicate The statute does monwealth. misdemeanor, felony, on-duty offense is a at the which the officer must be whether peace require- or other act which breach of cannot find that such a time. We presents an immediate clear and these circum- ment is mandated. Under stances, danger persons property. find the trial court erred would majority conclud- and reverse. Because 8953(a)(5). § 42 Pa.C.S.A. otherwise, respectfully dissent. ed object is to ascertain and effectu 3 Our Assembly. 1 ate the intention of the General 1921(b); v. 883, 18, 24,

Burnsworth, Pa.

(1995). attempting ascertain the mean statute, the intent

ing of a we must consider practical legislature and examine the particular interpretation.

consequences of a Davis, Pa.Super. Commonwealth v. Pennsylvаnia, COMMONWEALTH denied, Appellee, v. presume Pa. We legislature did not intend a result that is construing Id. In absurd and unreasonable. SCHATZEL, Appellant. Terry Lee intent, may to the legislative this Court look Pennsylvania. Superior Court of statute, necessity the cir occasion and of a intended, it was cumstances which Argued Aug. remedied, object to be mischief to be Filed Dec. law, law on the same attained former 16, 1999. Reargument Denied Feb. subject particular consequences and the of a interpretation. Id. undisputed on the It that based viewed, Appellee have been

conduct could party proper jurisdiction,

stopped by a

i.e., on-duty citizen or an either asserts, majority howev-

police officer.

er, acting out- that an jurisdiction authority to take

side his has no private citizen or as

action either as a agree that simply cannot officer. legislature by the

such a result was intended enacting ‍​‌‌​‌​​​‌​​‌‌‌​​​​​‌‌​‌‌​‌​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​​‌‍provision. this See Common-

when Gommer,

wealth (1995)(finding that under similar

A.2d 1269

circumstances, con- Police Officer could State business, despite being

duct official that attach to a

off-duty, safeguards where by on-duty being

driver over Clearly, a present).

officer were

Case Details

Case Name: Commonwealth v. Bradley

Court Name: Superior Court of Pennsylvania

Date Published: Jan 12, 1999

Citation: 724 A.2d 351

Court Abbreviation: Pa. Super. Ct.