Commonwealth v. Johnson

(rejecting argument 1731(b.l), (Pa.Super.2003) § not from the deci- 783 clear place, consequences Ingalls plaintiffs took could avoid sion when events side of on reverse panel unambiguous did not cite to discuss waiver Thus, they to read or statutory Ingalls proof failed language. signed new form it). applicability of court not rule on the reverse did understand We therefore 1731(b.l) summary judg- § the one granting situation such as trial court’s order Smiths, us. and remand before favor of the ment in consistent with proceedings for further ¶ also v. Jen 9 We consider Saunders opinion. kins, which (Pa.Super.1998), 717 A.2d 561 of a vehicle from Hertz involved rental matter re- Judgment reversed and chal plaintiffs in 1991. The there also relinquished. manded. Jurisdiction liability, lenged the form of the UIM and rejec coverage offer other insurance provisions they signed part

tion Id. at Our Court agreement.

rental 562. §§ 1791

concluded that because 75 Pa.C.S. availability (relating

and 1791.1 notice options)

of benefits and disclosure of tort self-insureds, apply not and because

do require § 1787 that self-insureds does Pennsylvania, COMMONWEALTH provide coverage, UIM Hertz was not lia Appellee, pay Id. plaintiffs. ble benefits 564. Ingalls 10 Both the and Saunders JOHNSON, Appellant. Husani Kwasi §

courts relied on the fact that 1787 had Pennsylvania. Superior Court of only in MVFRL been the statute self-insureds, provi related 21, 2003. Submitted Jan. § apply sions of 1731 thus did not to self- Hackenberg insureds. See v. Southeastern Sept. Filed Auth., Pennsylvania Trans. (1991) (§

364-65, 1787 is section in the MVFRL which the benefits for which a self-in

defines liable). However,

sured is since the enact 1731(b.l), spe §

ment of which does refer

cifically to and rental “self-insurance”

agencies, the MVFRL does allow the cus agencies

tomers of self-insured rental

reject proper coverage, waiver UM signed.

language is 11 In this Sharmetha Smith did form

sign a waiver of UM benefits 1731(b.l). § The fact that her

required by side

signature appeared on the reverse does not make it less valid.

the waiver Co., Kline v. Old Guard Ins. of Unlawful Pos-

following his conviction I Sub- of a Schedule Controlled session § 780- (phencyclidine), P.S. stance 113(a)(16). Appellant contends suppress refusing trial court erred during an of contraband seized evidence Pennsylvania State with a encounter review, Upon we affirm the Trooper. judgment of sentence.

¶ following This arose a matter Brian Trooper stop during which State vehicle which pulled Overcash over the Appellant Appellant passenger. was a legality of that not contest the does However, prompted the events Trooper the conclude that trial court to lawfully Appellant after detained Overcash ostensibly concluded. the vehicle had concerning those events es- The evidence 8, 2000, April on tablishes that on Penn- stopped the vehicle the Overcash speed sylvania Turnpike exceeding for the occupants of vehicle includ- limit. The the riding in the back- Appellant, ed who was Bell; driver, seat; a front the Jarrón and Linnen-Fuqua. Af- passenger, Kijafi seat vehicle, he exited his stopped ter Bell pace aat hurried to- vehicle and walked trooper’s patrol car. the ward actions unusual Bell’s Overcash considered put his hands ordered him to and and patrol vehicle. Bell on the hood urinate, had to repeatedly insisted that he however, following patdown, a and relieve himself allowed him to trooper on the side the tree line along Defender, Rhoades, B. Car- Jessica Pub. troop- patdown, Turnpike. During lisle, appellant. for pocket in Bell’s large er wad of cash felt Atty., Keating, Jaime Asst. Dist. M. money he had. how much and asked Bell Com., Carlisle, appellee. $2,300, some replied that he had about belonged passengers. two to his which JOHNSON, LALLY-GREEN Before: Bell to directed then POPOVICH, and JJ. to his vehicle. return POPOVICH, J. thereafter, Trooper Overcash Shortly the vehi- passenger side of approached the Appellant ap- Husani Johnson Kwasi to Bell. citation imposed speeding cle to issue of sentence peals judgment During his interaction money pocket with vehicle’s Bell about in his occupants, trooper “Philly saw unrolled passengers asked the of it belonged papers blunt” cigar spread and tobacco to them. Linnen-Fuqua claimed none of about the interior of the car. He took it, no claimed $100. observation, however, action on based point, Trooper 5 At that Overcash saw prepare continued to the speeding ci- glass ap- vial seat driver’s Through window, tation. passenger’s peared vegetable to contain crushed mat- trooper asked for a driver’s license. trooper ter. The took the vial from the Although license, someone him handed car and smelled its but contents could not driver, which he assumed belonged to the odor, identify suspected although the trooper could not recall whether the marijuana. was He the asked vehicle’s produced driver had The trooper it. then occupants they if any knowledge had went to patrol back his and car used the vial, professed ignorance. and all three prepare license speeding the citation. Trooper Overcash then handcuffed the citation, completing After the Troop- three holding men with the intent of them car, er gave Overcash returned to Bell’s until he could determine what the sub- Bell, directly explained citation and stance was. While the men remained his and rights obligations concerning the handcuffed, he searched in each them a citation how respond. and Bell ac- pat- manner he described as than “more a receipt knowledged by checking a box on down.” He discovered Appel- ten vials in citation, trooper and the then told him pocket lant’s front right that contained go. he leave, was free Before Bell could vegetable like matter that in first vial. however, trooper turned and asked if He also money discovered that in he would mind some answering questions. pocket separated Bell’s into bundles of Bell agreed trooper and the asked where trooper transported each. The then $70 been, there, he long had how had been he all three to the men state barracks and going. replied where was that searches, strip and finding conducted sev- he had in Philadelphia been intending to in Appellant’s en more vials crotch. Later stay the weekend but car had trouble and laboratory testing that showed vials pay could not for a hotel room so decided contained crushed mint leaves treated with Trooper to return to Pittsburgh. Over- (PCP). phencyclidine suspi- cash found Bell’s financial straits ¶ 6 charged Appel- The Commonwealth given cious his discovery earlier of a large possession lant with count simple one pocket. wad of cash his The trooper proceeded and the matter in Cumberland also appeared observed that Bell “ex- County before Honorable Edward E. tremely discussion, nervous” during the Appellant Guido. suppression filed a mo- that lips shaking his were and that he was tion, Trooper Overcash asserting de- very speaking rapidly. trooper then unlawfully, tained him without reasonable anything asked whether Bell had illegal in suspicion, following his observation the car and could conduct a search. Following vial seat. driver’s Bell consented to the search and evidentiary hearing at which pre- Overcash returned to own car Ov- testified, pare Judge ercash Ap- a Guido denied consent-to-search form. When the returned, however, pellant’s trooper motion. later bench Following Bell told him a trial, changed Judge Appellant that he had his mind because he Guido convicted as in hurry go. charged imposed and and wanted Never- sentence time theless, trooper to question continued served to six months incarceration and on his found Appellant suppress filed evidence granted parole. immediate raising following questions He asserts appeal, the vehicle. without reasonable for our detained him review: therefore, and, illegally acted re- I. Did the trial court err when person. Ap- from his seizing contraband obtained suppress fused to evidence brief, Although at 11. pellant’s person, from [Appellant’s legality of the initial traffic vehicle, concedes the of a second result Trooper Overcash had stop, he illegal argues detention conducted initial, and that his continued proper stop? concluded demon- required renewed questioning finding Did II. the court err not sub- of reasonable stration ar- probable had cause to trooper Appel- issue. stantiated facts at [Appellant] rest there was no when brief, lant’s he had probable cause believe posses- possession, constructive citizen/police Regarding interactions sion, aof controlled substance stops, in during traffic inside found the vehicle? (Pa.Super.2002), we By, 812 A.2d 1250 brief, Appellant’s at 5. stated: Appellant argues 7 The Amendment to the United Fourth unlawfully detained I, and Article Sec States Constitution concluding him searched a routine Pennsylvania 8 of the Constitution tion of the in which he was vehicle protect individuals unreasonable riding and conducted an unlawful arrest seizures, thereby ensuring searches and during based observations he made be “right of each individual to let the Appellant’s questions Both Bustamante, v. 412 alone.” Schneckloth sup challenge the trial court’s refusal to 236, 2041, 218, 36 L.Ed.2d U.S. 93 S.Ct. press considering evidence. In the denial Blair, (1973); v. 394 854 Commonwealth motion, suppression of a our standard of (Pa.Su 207, 593, Pa.Super. 575 A.2d 596 is must “deter review well settled. We Specifically, police officers per.1990). supports mine whether record not a warrantless search or may conduct suppression findings court’s factual recognized one of several seizure unless legal legitimacy the inferences and Schneckloth, exceptions applies. See findings.” drawn from conclusions these 2041]; Blair, 219[, at 93 S.Ct. 412 U.S. 1202, Ayala, v. 791 A.2d Commonwealth exception 596-97. One such 575 at so, (Pa.Super.2002). doing In we 1207 to con pursuant conducted is search prosecution’s [evi consider “may Blair, 575 voluntarily given. sent See and the defendant’s evidence to dence]” (citation omitted). at 597 Id, contradictory. is extent not inquiries Amendment consent Fourth pre If 791 A.2d at 1207. the evidence two-prong assessment: cases entail sup at suppression hearing sented first, validity constitutional of the fact, ports may findings these rise to citizen/police giving encounter the lower court unless its accom reverse second, and, the voluntari the consent legal conclusions are error. panying consent. See Common ness said Lohr, 459, v. 715 A.2d 47, Strickler, 563 Pa. v. wealth (Pa.Super.1998). 461 (citation omitted). 884, 888 underlying encounter argues sup- 8 first Where lawful, be- be voluntariness pression it refused to found to court erred when id, ed, comes the exclusive Supreme focus. See the United States Court (citation omitted). A.2d at 889 If a de- objective has entailing devised an test fendant’s initial detention violates whether, viewing determination of Amendment, Fourth then evidence totality circumstances, a reason- seized must be exclud- able would have believed that he ed as fruit of an unlawful detention ab- id., was free leave. See sent government demonstration (citing Mendenhall, United States v. both aof sufficient break the causal 544, 554, 1870, 446 U.S. S.Ct. chain between the illegal detention and (1980)). L.Ed.2d In evaluating the evidence, the seizure of assuring thus circumstances, the focus is to- directed that the search exploitation is not an whether, by ward means of physical illegality, and of voluntariness. force or show authority, the citizen’s id., (citation 757 A.2d at 889 omit- way movement has in some been re- ted). id, (cit- strained.1 See 757 A.2d at 889 To right secure the of citizens to be Mendenhall, ing 553[, U.S. intrusions, free from such courts 1870]). S.Ct. Pennsylvania require law enforcement companion Strickler and its officers to ascending demonstrate levels Commonwealth v. of suspicion justify their interactions (2000), Supreme 757 A.2d 903 our Court with citizens as those interactions be has principles used these sei- regarding come more intrusive. See Common zure to subsequent citizen/po- examine a Key, wealth Super 2001 PA lice following interaction a valid traffic (citation A.2d 288 (Pa.Super.2001) cases, In these recog- the Court omitted). nized that “the transition between de- The first of these interactions is a tention and a exchange consensual can encounter,” “mere or request for infor- be so eye seamless that the untrained mation, supported which need not by be may not notice it has occurred.” of suspicion, level but carries no Strickler, (citation 757 A.2d at 892 omit- compulsion stop official to or respond. ted). Although there bemay ques- no Strickler, 757 A.2d at 889. The tion regarding validity of “investigative second level is an deten- stop, traffic question crucial is when tion,” Terry stop, or sup- which must be id, validity stop of that ceased. See ported by reasonable and articulated 757 A.2d at 891. seized is en- initial, purpose Where the of an valid gaged in activity, criminal and the de- stop traffic a has ended and reasonable may tention continue so as is long person would have believed he dispel to necessary confirm or such sus- leave, free id., the law characterizes a picion. See 757 at A.2d 889. It subsequent of subjects questioning by round suspect stop a to a period officer as a mere of detention encounter. See Strick but does not involve such ler, 757 A.2d at 898. Since citizen is coercive conditions as to constitute the leave, detained, id., free to equivalent functional of is and the arrest. See 757 free ask Finally, questions appro A.2d 889. are arrest priate encounter, including a supported “custodial detention” must be to mere a id., by probable request permission cause. See 757 A.2d at to search the ve However, guide 889. hicle. of inquiry purpose To the crucial as to where the whether or not a seizure has been effect- an initial traffic has ended and a

761 reason- any additional pellant be was without person would not have and, thus, ob- leave, the evidence suspicion, the law able that he was free lieved suppressed. be tained should subsequent a round characterizes an investi questioning by police as interaction citizen/police 11 The first Free gative detention or arrest. See returned when Overcash ended man, the absence documents, him the driving issued support either reasonable him speeding and informed citation for probable investigative detention or A citi- free to leave. second arrest, support the citizen cause zen/police began when interaction unlawfully detained. Where considered Bell and question continued to preceded search has been consensual his com- thereby prohibited detention, by exclusion an unlawful leaving. panions from See Commonwealth ary requires suppression rule of the evi 908, 82, 907 v. dence obtained absent demonstration when (finding concluded of a suffi the commonwealth both motorist’s documents officer returned in the cient break causal chain between leave). her that free to We must told she illegality and the seizure of evidence. analyze of the second the characteristics voluntari This assures the search’s the legality interaction determine exploi and that the search is not an ness subsequent detention Trooper Overcash’s unlawful detention. tation Ortiz, v. Appellant. See Commonwealth (citation Strickler, 757 at 889 A.2d 261, appeal (Pa.Super.2001), omitted). denied, (2002), Pa. (reaffirming citizen/police interaction Royer, In Florida U.S. (1983), be ana- following valid traffic “must S.Ct. 75 L.Ed.2d United Supreme explained States Court that there is it to determine whether lyzed anew "litmus-paper” distinguishing no test for constitutionally sei- to a valid amounts mere encounter from seizure follows: zure_”). necessarily imprecise, The test is because designed to the coercive effect of assess right citizens 12 To secure the of conduct, whole, police taken as a rather than particular to details that conduct focus of and be from unreasonable search to free Moreover, in isolation. constitutes a what arrest, unlawful courts seizure and liberty person prompting restraint on a to offi Pennsylvania enforcement require law conclude that he is not free to "leave” will ascending to levels of cers demonstrate vary, particular police not with the con- issue, setting duct at but also with the justify to their interactions with which the conduct occurs. interactions citizens to the extent those 506, Royer, at at 460 U.S. 103 S.Ct. liberty. compromise individual See Com By, A.2d at 812 1254-56. 1196, 1201 v. Reppert, monwealth (en banc). pur (Pa.Super.2002) not For this 10 does Supreme Court has defined three challenge constitutionality pose, our encounter, stop He mere Overcash’s decision to the vehicle.1 forms interaction: “a detention, [investigative] and a custodi challenges subsequent detention after Id., 814 1201. A stop. Appellant contends al detention.” A.2d at valid traffic by limited Ap- mere encounter is characterized Overcash’s detention argument speed Pa.C.S.A. appear limit in violation 75 1. Nor would it that such an could be sustained. Overcash cited § 3362. exceeding the driver of the vehicle for 762

police presence police and conduct and ably, trooper’s request even the to search questions that are not suggestive of coer- the car did not escalate the nature of the id., (cit cion. See 814 By, A.2d at 1201. interaction. See A.2d Such 812 at 1256 898) (when Strickler, not obligate ing encounters do citizen 757 pur A.2d at and, respond pose or of valid traffic consequently, need ended and reason person leave, not be supported by any suspicion. able would free to level of believe id., subsequent If, however, questioning 814 A.2d at 1201. round of is mere encounter). Dales, police But presence intrusive, see 820 becomes A.2d at too 1 (quoting n. v. Zogby, interaction must be Commonwealth investiga- deemed an Pa.Super. id., tive A.2d detention seizure. A.2d (recognizing that they “unless told at 1201. have a decline, right most individuals are not To decide whether a seizure has oc- likely perceive request police from a curred, a court must consider all the choice”)). as allowing officer for a surrounding circumstances the encoun- ter to determine whether the demeanor Nevertheless, Trooper Overcash es- police conduct of the would have when, calated the encounter after Bell’s communicated to a person search, initial consent to a vehicle Bell that he or she was not free decline his changed mind and said request officer’s or otherwise termi- hurry wanted go. Although Troop- Thus, nate the encounter. the focal er did expressly refuse Bell’s point whether, inquiry of our must be leave, apparent request to the trooper con- considering circumstances surround- Bell, tinued questioning inquiring specifi- incident, ing the [person] a reasonable cally the money about he had felt in Bell’s crime, any innocent of would have pocket during patdown. the initial Given thought he was being restrained had he the deference that typically most citizens been in the defendant’s shoes. police recognition accord officers in legal officers’ authority, we conclude Id., that a 1201-1202. Accordingly, [person] “reasonable innocent purpose “[w]here the of an initial traffic crime,” would not felt free simply have has ended and a reasonable away, regardless drive how strong his would not have believed that was free desire. See 757 A.2d at 907. leave, law characterizes subse- find that Trooper We Overcash’s continued quent round of questioning questioning at point vitiated his an investigative detention or arrest.” statement releasing passen- Dales, gers go an investigative constituted (Pa.Super.2003) (quoting By, A.2d 812 at id., detention. See 757 A.2d at 1255). 907-908 (concluding police inquiries that inconsis- ¶ Upon 13 review of the record at tent with officer’s advice earlier that de- here, issue conclude we that Over- depart fendant was free to “would have cash’s subsequent Appel interaction with person suggested a reasonable that such lant, Bell and the other culmi passenger was no longer operative”). advice in investigative nated an In detention. so finding, we acknowledge initially, that the investigative 15 To conduct an trooper’s questions detention, were innocuous and a law enforcement officer “must neither his actions demeanor nor other at suspicion harbor least a reasonable that circumstances evinced so person coercive the seized engaged is then in un presence as to constitute a Argu- activity.” seizure. Reppert, lawful during subsequent suspicion only suspicious conduct 1203. Reasonable exists stop). where the officer is able to articulate which, “specific conjunc- observations in suppression court the

tion with reasonable inferences derived had con- recognized Trooper Overcash that observations, him from those led reason- stop when he issued cluded the initial conclude, experience, of ably fight in his citation, and in- the documents returned activity that criminal was and that afoot occupants they were free formed the in stopped was involved Opinion, Trial Court to leave. Id., activity.” at 1204. 10/17/02, suppression court also at 3. “Therefore, the inquiry fundamental of the continuing questioning recognized one, reviewing objective court must be an detention, which, in a second be- resulted ‘namely, facts whether the available to the nature, investigative of was an cause its at [intrusion] officer the moment of war- id., Accordingly, at 3-4. detention. See rant a in the man reasonable caution as accepted following court factors taken appropri- belief that action to con- grounds suspicion for reasonable ” (quoting ate.’ Id. lawfully clude that Overcash acted Zhahir, companions: Pa. A.2d detaining in (insertion Zhahir)). [Appellant] joint was the owner [1.] large being carried sum cash

¶ Where, here, as the detention driver. a prior stop, at issue follows valid traffic occupant an of a [Appellant] was [2.] arresting officer must demonstrate Philly papers vehicle in which blunt cause after the end of the throughout. were strewn independent initial basis on nervous The driver was visible [3.] Ortiz, which conducted that anything illegal when asked there was (“Without 786 A.2d at 266 existence of a in the car. suspicion after the first encoun reasonable gave inconsistent [The [4.] driver] ended, ter had second detention was journey. their regarding statements unlawful”). Thus, Ortiz, recognized suspected containing A vial glass [5.] that even where a conduct defendant’s marijuana plain view of driv- stop “may have merited er’s seat. inquiry,” arresting further officer’s in 10/17/02, 4. at Opinion, Trial Court that he was free struction to defendant found, infra, Having discussed he had to any grounds to leave vitiated well before the detention occurred id., hold the defendant further. See vial, observed Trooper Overcash at 266. Absent some new observa utilizing Factor suppression court erred circumstances, suspicious the defen tion vegetable matter concerning apparent illegal. See dant’s continued detention was vial, in the to vials used glass similar (‘Without id., 786 the exis seat, in trade, in the deter- drug driver’s after the first tence trooper had reasonable mining that ended, had the second detention encounter discovery of the vial suspicion. later unlawful.”). Freeman, also was See prior justify deten- be used cannot (finding illegal seizure where tion. arresting defendant she was officer told suppres- that the stop despite suspi Appellant argues go after initial free utilizing Factors 1 and identify sion court erred and failed to cion of her conduct Trooper because Trooper made those Overcash had a reasonable prior observations to the conclusion of the basis for investigative detention of oc- and advising Bell that he and cupants, including Appellant. In Free- his passengers were free to Appel man, leave. Ortiz, a second encounter lant Freeman, relies on Commonwealth v. occurred after the determined that (2000), 757 A.2d 903 and Com suspicion no reasonable justify existed to Ortiz, (Pa.Su monwealth v. 786 A.2d 261 therefore, detention and the defendant was per.2001), argue that because these fac Freeman, go. 908; free to See 757 A.2d at tors were made occupants to the Ortiz, see also 786 A.2d at 266. This being vehicle they told that were free scenario best summarized: leave, the trial court prohibited While Ortiz’s behavior ini- using these factors to determine a tial investigative may detention have reasonable basis existed for suspecting merited further inquiry to determine if activity. criminal conduct, anxiety his was due illegal nothing happened the conclusion of Supreme Our recog Court after the initial to provide Officer Baur Freeman, nized applied and as suspicion. further cause for Without the Ortiz, reasonable suspicion of criminal ac existence of a reasonable after tivity during subsequent stop must be ended, the first encounter had the sec- derived from observations made after ond detention was unlawful. conclusion of the first See 908; Ortiz, 757 A.2d at see also Ortiz, (citation 786 A.2d at 266 omit- Trooper Because Overcash knew of ted). the large amount money “Philly ¶23 However, the events of this blunt” papers before he told Bell he could case distinguished can be from Freeman go, we do not find those factors alone Trooper Ortiz because Overcash made cognizable constitute a basis on which to observations the conclusion of the after conduct the subsequent stop. If Trooper initial stop. He observed Bell become ex Overcash had not made any further obser tremely nervous when being questioned vations, then Freeman require sup would about whether the vehicle contained pression However, of the evidence. contraband. Overcash also lis suppression court recognized two more tened to Bell’s story being about forced to factors that upon, Overcash relied Philadelphia leave because he and his com and these observations occurred after panions did not enough money have for a initial stop had concluded. However, evening. hotel room for the ¶ 21 Trooper Overcash noted Bell’s ner- story conflicted with Overcash’s vousness when asked if anything there was $2,300.00. So, finding group had illegal in the car and the driver’s “inconsis- Ortiz, unlike Freeman and additional ob tent” statements concerning trip. servations were made the initial observations, own, These may their not had concluded. Because observations constitute investigative a lawful basis for were made after stop, the initial the trial Reppert, detention. A.2d at 1206 court was correct in viewing the total cir (finding nervous demeanor and furtive i.e., cumstances, happened prior what had movement insufficient basis for investiga- encounter, to and after the initial in deter detention). tive mining whether exist

¶ However, because, when Factors 3 and 4 are ed at the time of the detention combined with Factors and we question find “The of whether reasonable sus- has an offense in the belief that at the of a detention caution picion existed time ar- by examining person totali- be must be answered been committed ty Gwynn, of circumstances to determine whether rested. See Commonwealth (cita- objective particularized there was a and crimi- suspecting basis the detainee of omitted). tions activity.” 757 A.2d at 908. nal ¶27 Trooper record reflects The that court “the to- Given must examine pas was Appellant observed: Overcash circumstances,” we find that tality of the “Philly in blunt” in a vehicle which senger suppression court not err in exam- did seat; on Bell’s in the front papers were ining Trooper Overcash’s observations cash, some large was amount person to the second detention because Bell acted belonged Appellant; of which nothing language of Freeman or asked their contra nervous when expressly implicitly or the to- Ortiz limits vehicle; glass vial of a in the and a band tality of obser- the circumstances those found suspected controlled substance was only occurring the initial en- vations seat, passenger no in the driver’s with counter had ended. admitting possessing the the vehicle ¶ Therefore, totality under the Trooper used these obser vial. Overcash circumstances, 1-4 specifically, factors the passen that vations determined relied, upon which the trial find court activity. illegal involved in gers may be Trooper had a that Overcash reasonable suppression find Accordingly, we that activity of criminal and that the finding did not err court occupants, includ- detention of the vehicle’s possessed a belief Overcash ing Appellant, was lawful.2 upon information to trustworthy based ¶ Appellant’s appeal second issue on Appellant him to the conclusion that lead suppression is that the court in find- erred a criminal act. had committed ing probable had Overcash suppression Having found that the Appellant cause arrest because the suppress failing did court not err trooper probable did not have cause to evidence, judgment of sen- we affirm the Appellant believe con- possessed, tence. structively possessed, glass vial found Judgment affirmed. sentence on the driver’s seat. ¶ 26 Probable cause to arrest ex JOHNSON, J., Dissenting files a facts ists when the and circumstances Opinion. and of knowledge within officer’s J., JOHNSON, Dissenting. reasonably which the officer has trustwor respectfully Majority 1 I thy are in them dissent. information sufficient had person to warrant a of reasonable determines selves Reppert, we when asked whether the vehicle contained 2. stated that conduct detention, contraband, investigative gave conflicting an officer “must har- stories travels, bor least a reasonable "Philly vehicle had about their engaged activi- seized is in unlawful about, papers strewn blunt” ty.” Reppert, At first large being part of a owner admitted to glance, only to the Factors and 4 relate (and yet Appellant amount of cash Bell, therefore, and, conduct one could companions to afford a hotel were unable conclude that However, Bell could be detained. Philadelphia). led to These circumstances totality of the circumstances Appellant. lawful detention visibly nervous conclude otherwise: Bell suspicion reasonable to conduct an during investi- the second encounter with his ob- gative detention of during Kwasi Johnson and servations the first in order to for- accordingly suspicion concludes that mulate the trial court reasonable to conduct a I nothing did not err in seizure. find refusing suppress either Freeman evi- or Ortiz dence of that counsels such a In- trooper contraband the result. seized deed, Ortiz, carefully we that person. from enunciated support Johnson’s In of this notwithstanding an officer’s conclusion, observations Majority reasons that suspicion encounter, during the first Trooper Overcash legally entitled to renewed detention after that encounter rely on during observations made a routine has ended supported by must be new sus- prior concluded to the Ortiz, picion and new observations. See beginning of the encounter at issue here. “[wjhile (reasoning A.2d at 266 I find nothing the case Majority law the Ortiz’s during behavior the initial investi- compels cites that or even allows such a gative may detention have merited further Moreover, process. I find Over- inquiry anxiety to determine if his was due cash’s during observations the second en- conduct, illegal nothing happened after counter insufficient to detain this defen- provide conclusion of the initial dant. suspicion.”) Officer Baur further cause for ¶ Where, here, detention (original emphasis). In accordance with issue follows valid traffic stop, an rationale, this the “conclusion of the initial- arresting officer must demonstrate cause stop” significant, part, because it fore- after the end of the initial ability closes the of the detaining officer to stop independent any basis on which he hold a citizen on the basis of observations conducted that stop. See Commonwealth made, but on which he did not act in a Ortiz, 266 (Pa.Super.2001). timely manner. See id. at 265. I fail to Thus, Ortiz, recognized that even discern, how, when an officer has observed where a defendant’s conduct during the circumstances he chooses to investi- stop “may have merited further in gate during stop, may an initial then be quiry,” the arresting officer’s instruction to very entitled to cite those circumstances to the defendant that he was free to leave support a subsequent my detention. In any grounds vitiated he had to hold the view, requires Ortiz observations defendant further. See id. Absent some after stop” the “conclusion of the initial new observation suspicious circum must stand independently support stances, the defendant’s continued deten subsequent stop. (“Without illegal. tion was See id. ¶ 4 Having considered totality of cir- existence of a following cumstances the “conclusion of ended, the first encounter had the second stop,” the initial I cannot conclude that unlawful.”). detention was See also Com Trooper Overeash’s observations are suffi- monwealth v. grounds cient to establish for detention. (finding illegal seizure Here, Trooper Overcash relied on the driv- arresting where officer told defendant she er’s nervousness when asked there was go was free to after initial and failed anything illegal in the car and his “incon- identify suspicious conduct sub concerning sistent” trip statements sequent stop). he, Johnson, Linnen-Fuqua were Majority interprets Philadelphia. making This Court has Freeman and Ortiz to allow an officer held expressly that a citizen’s nervous de- meanor, effectively to combine his observations even when combined with related factors, not constitute a lawful basis does II, B.B., Appellees, K.B. K.B. and detention. See Common investigative 1196, v. Reppert,

wealth v. (en banc) (Pa.Super.2002) (finding nervous C.B.F., Appellant. insuffi demeanor and furtive movements detention); investigative cient basis for see Pennsylvania. Superior Court Sierra, 170, v. also Commonwealth opinion) (plurality 11, 2003. Argued March (finding demeanor insufficient ba nervous Sept. Filed 2003. sis for detention even when combined with suspicion that the defendant had stolen

motorcycle back the car parts DeHart,

stopped); (Pa.Super.2000). I find no

material between the conduct difference

observed in those cases and the conduct

observed here after the conclusion case, Trooper Over- (not saw car

cash driver

Johnson) questionable story con told

cerning inability trio’s afford hotel Philadelphia appeared very nervous Thus,

as he did as in cases so. cited

above, detaining officer observed little

objective relied conduct and instead

subjective interpretation of the citizen’s

manner bearing response As stress interaction. Reppert, such

observed “observations” “nothing

establish than ‘hunch’ em more

ploying speculation about citizen’s mo place

tive fact.” 814 A.2d speculation

Such is not sufficient basis

upon to conduct a lawful seizure. which id.

¶ Therefore, I respectfully dissent.

Case Details

Case Name: Commonwealth v. Johnson

Court Name: Superior Court of Pennsylvania

Date Published: Sep 25, 2003

Citation: 833 A.2d 755

Court Abbreviation: Pa. Super. Ct.