*1 simply by dressed “turning Pump Superior off” the to consider the eviden- Court ceasing and tiary administration of Baclofen. issue in the first instance. N.T., 2/25/04, However, at 74-75. appellee summary, In we find that the courts did testify any not to the likelihood of in holding below erred that the substantial acknowledged occurring, risks nor did factor element of an informed consent
he testify permanent that a loss of function claim cannot be established circumstan- any surgery associated with pa on MS tial evidence. We also remand the matter Furthermore, appellee tients. as empha appellant’s evidentiary consider claim. sizes, appellants qualify did not appellee as Vacated and remanded. expert an prior asking questions him regarding the risks implantation. CAPPY, Former Chief Justice Finally, appellee is noting also correct in former Justices BALDWIN expert medical testify witness must participate FITZGERALD did not in the degree to “a reasonable of medical certain decision of this case. ty,” Dep’t Barbour v. Transp., 557 Pa. 1157, (1999), A.2d appel- SAYLOR, Justice EAKIN and BAER lee never testified that opinion his reached join opinion. certainty. short, level of In appellee (nor asked) did testify was he
whether surgery itself carries a risk of
permanent neurological deterioration patients,
MS quantify nor did he the likeli supposed Thus,
hood of this risk. on this record, (and
trial appellee is correct Superior Court’s offhand comment was Pennsylvania, COMMONWEALTH of incorrect) correspondingly that appellants Appellee carry failed to their burden proof on necessary issue, this and we simply cannot Kennedy KEMP, Appellant. Decatrick jury reinstate the verdict. Superior Pennsylvania. Court of
The fact that appellants did not adduce sufficient, qualified expert sup- evidence to Submitted Sept. 2007. claim, port however, their does not end the Filed Nov. above, case. As we have noted appellants’ proof at trial was limited the trial evidentiary
court’s ruling, which excluded testimony of Drs. Atlas and Grenell on
informed consent. Appellants objected to limitation, evidentiary they re- appeal.
newed claim on direct Given holding respecting
its J.N.O.V. the absence testimony Carol, however, from the Su-
perior panel Court did not reach the evi-
dentiary Furthermore, issue. the eviden-
tiary issue has not been argued briefed or circumstances,
to this Court. such
better is to course remand the matter to *3 P.J., ELLIOTT, FORD BEFORE: LALLY-GREEN, MELVIN,
MUSMANNO, ORIE GANTMAN, BOWES, D,* TOD jj. McCaffery** Daniels,*** BOWES, BY J.: OPINION appeals Kennedy Kemp Decatrick July judgment from the months twenty-three sentence of six *4 years followed two imprisonment imposed after he probation that was nonjury pos- trial of convicted at was substance, pos- session of a controlled substance with of a controlled session deliver, Ap- conspiracy. intent constitutionality pellant challenges that in interdiction resulted substance, of the controlled the seizure Appellant that marijuana. We conclude that was subjected to a detention was reason- by the existence of supported possession was in able he also con- of a controlled substance. We ve- consent to search the clude constitutionally question hicle in was Hence, we affirm. infirm. August adduced at the The facts follow. suppression hearing 19, 2005, morning hours of March
early Anthony F. DeLuca was Trooper State Pennsylvania along monitoring Tunnel. He Turnpike Allegheny near the tinted Appellant’s vehicle with observed seeing him from prevented windows it. began and he to follow inside the Mariani, Pittsburgh, appel- for Warner front, were tinted on the The windows lant. side, side, front driver’s passenger’s front At- District Jerry Spangler, side, L. Assistant side, rear driver’s passenger’s rear Commonwealth, Somerset, ap- tinting for constitut- torney, rear windows. Such 4524(e)(1).1 § Pa.C.S. ed a violation of 75 pellee. * (e) AND MA- Judge participate in consid- SCREENING OTHER Todd did not SUN this case. eration or decision of PROHIBITED.— TERIALS ** (1) any ve- person drive motor No shall McCaffery participate in the Judge did not screening device or any hicle with sun or decision of this case. consideration *** permit a does not material which other Judge participate in the con- Daniels did not of the ve- or view the inside person to see this case. sideration or decision of windshield, wing side through the hicle vehicle. window of the or side provides: That subsection 1. Trooper stopped Id. at 9. When bake clothing, DeLuca their into the seats. And ear, Kyles driving Kandice I a faint getting with was odor of raw mari- juana from Appellant sitting coming seat. inside the vehicle. passenger Id. at 28. testified, 3 The “The min- window, [Kyles] ute that rolled I down her Trooper DeLuca delineated his ex- of, got extremely hit odor strong in detecting drug tensive training traffick- masking agent, fresheners, called [its] air ing experience as vast well as such dryer at sheets.” Id. 11. DeLu- Trooper investigations qualified testify and was ca stated the odor “there 15-16, indicated as an expert witness. Id. at something could be in the training experience, vehicle.” From he this trooper When the asked for drug attempt documenta- knew that traffickers often tion, Kyles respond did not continually marijuana to mask the scent with Appellant. large looked of air appeared “very She number fresheners and use third-party and her rather than artery pul- nervous” carotid vehicles their own transport drugs vehicles sating, agita- they another marker of so that extreme *5 property will personal tion. at 12. not lose if the vehi- Trooper Id. DeLuca scanned cle is seized. the interior of the vehicle and observed
“roughly air fresheners” various of ¶6 Specifically, Trooper DeLuca testi- types, including a tree-shaped number of fied that trained in drug he was courier fresheners, pine freshener, air a crown air techniques, detection and looked for the jar open and an of that Id. at substance. 1) of such following activity: indicia either 13. third-party ownership of vehicles or third-
¶ rentals, party the third party where is not 4 Kyles produced a Jersey New resi- 2) car; present “presence of card, dent identification which to appeared such masking agents as crown air freshen- counterfeit, be and Appellant a produced er” or what refer to “felony as for- Florida driver’s license. in- Appellant just ests people where the throw a bunch Trooper formed DeLuca that the vehicle of those trees in Christmas their vehicle to by person was owned a whose last name 3) odor;” try get to rid of whether the During Appellant “Lee.” questioning, car is coming city, from source such as Kyles and were evasive and refused to York, Allentown, Lancaster, New Reading, look at the officer. Finally, located while Philadelphia, Pittsburgh, or Harrisburg; vehicle, at the driver’s window of the 4) by the nervous reactions car’s occu- Trooper DeLuca could “detect the faint sweatiness, pants, including refusal to marijuana, odor marijuana of raw ... from contact, eye wringing, make hand a pulsat- inside vehicle Id. at outward.” ing artery, inability give carotid and the to Trooper 27. DeLuca nature detailed the 5) clarifying questions; answers to and of the narcotic scent: presence of counterfeit documents. Id. at Narcotics, when sitting in a vehicle for trooper people also stated that time, long [they] begin basically to attempting who to are not mask the scent they call what burn into If the vehicle. of a substance normally controlled would vehicle, it’s locked inside the if it’s hot have air one or two fresheners. out, they air, on, have an air conditioner ¶ on, if have they heating system and 7 The officer returned to his car and Kyles there’s narcotic located vehi- inside the conducted a check and the car.
cle, narcotics, driver, if it’s a large Kyles amount a licensed was not and vehicle, going it’s to bake in a into person bake car was not whose owned last arrested. Appellant was point, At that Id. Id. by Lanika Paolucci. name was Lee but arrested the scene officer at Trooper DeLuca issued Another 29. After at improperly-tinted warning Kyles.2 for the windows violation, Kyles to he asked and the license evidence, sup- this 10 Based on warnings, showed her exit the suppress to court refused pression have to would Appellant explained 15, May search. On óf the vehicular fruits day.” drive, a nice told her “to have nonjury trial to a proceeded case walk Kyles started to 34. When established where Commonwealth contact Trooper DeLuca re-initiated away, pounds of nearly twenty-three were there her a speak if “could to by asking he May the car. On marijuana in minute.” Id. at 35. guilty possession was found Appellant response to his Kyles agreed, and substance, of a con- possession a controlled origin of her the location question about deliver, with intent substance trolled destination, travel- that she was stated 25, 2006, he was July conspiracy. On Pittsburgh. She Allentown ing from twenty-three months sentenced to six why of details about a number
was asked years pro- followed two imprisonment what she did to Allentown and she went followed. appeal This bation. Kyles told Trooper DeLuca while there. conten raises this Appellant instructed her go free to that she was review: tion for our standing outside who was Appellant, to tell vehicle, have to drive. that he would denying Ap- erred in The lower court *6 because, motion suppression pellant’s ¶ to the ve- returned Appellant 9 When stop in this the initial though even hicle, Appellant his gave DeLuca Trooper proper, pro- the may have been hand, case license, and told his driver’s shook Sergeant had after the longed seizure As day.” Id. at 37. him “to have a nice stop the vehicle door, purpose the of achieved driver’s side reached the Appellant support suspicion to required reasonable contact with re-initiated Trooper DeLuca ques- and of the to him the continuation speak “if could by asking [he] him tioning Appellant. walked back of Appellant Id. for a minute.” DeLu- Trooper DeLuca. Trooper
toward i.at Appellant’s brief details of Appellant about questioned ca our Initially, we outline 12 if Appellant then asked his travel and review: standard of money” or any “guns, drugs, there were of a propriety the reviewing When Appellant at 40. inside the vehicle. Id. order, court is appellate suppression eye with the immediately broke contact the rec- whether required to determine Then, negatively. responded and court’s fac- suppression the supports ord if he Appellant DeLuca asked Trooper the inferences findings and whether tual vehicle, [Appel- inside the “could look sup- drawn legal conclusions Sure, I’ll the trunk.” pop stated: lant] findings are those court from pression immediately saw Trooper DeLuca at 41. Davis, v. Commonwealth appropriate. bag, “grabbed He bag. plastic (1980).... 363, 421 A.2d Pa. him real- bag” made plain feel of the [his] factual supports record marijuana.” Where full of bag “the ize that unclear, later. suppression the scene 2. While the record is arrived on that the second officer court noted 1) court, of the
findings suppression presence we are factors or absence include 2) excesses; may police bound those facts and reverse of whether there was 3) contact; only legal if conclusions drawn physical police whether direct- 4) are in movements; therefrom error. Commonwealth ed the de- citizen’s Bomar, 426, 831, 5) v. 573 Pa. 826 A.2d of expression; meanor and manner (2003). However, 6) where the appeal interdiction; of the location and time suppression the determination of the questions the content of and state- error, allegations court turns on legal 7) ments; the existence and character suppression “the court’s conclusions of detention, investigative including the initial binding appellate law are not on an 8) coerciveness; degree degree its “the court, duty whose it is to if determine to which the transition between the traffic the suppression properly applied court stop/investigative detention and the subse- to the law the facts.” v. Commonwealth quent can be encounter viewed as seam- Nester, 551 Pa. 709 A.2d 881 less, suggesting ... thus to a citizen that (1998). may subject his remain po- movements to 9) restraint,” 898; Mistler, lice id. at and whether Commonwealth 590 Pa. 1265, 1269-70 (2006). express
912 A.2d
there was an
admonition to the
citizen-subject
effect that
is free
present case,
In the
the suppression
depart,
potent,
“is a
objective
which
fac-
court concluded that
the traffic
be-
tor.”
Supreme
Id. at
Our
also
Court
Trooper
came a mere encounter once
De-
when an
observed that
individual has been
Luca returned the
Appellant
documents to
subjected
valid
to a
detention but
him to
told
have a
day.
nice
engage
person
continue to
in conversa-
court
that Appellant’s
held
consent
tion,
person
likely
reasonably
is less
procured
search was not
as the
of a
result
actually
believe that he
free to leave the
However,
detention.
we cannot
with
agree
scene.
assessment
situation.
*7
¶
Herein, both Appellant
16
and
Strickler,
his com-
14 In Commonwealth v.
563
panion
stopped at 1:30 a.m.
po-
Pa.
were
Two
(2000),
Supreme
ted
to enter
had been
Rogers,
the defendant
Thus,
totality
the cir-
away.
given the
to a
trooper pursuant
issue,
Ap-
state
conclude
seized
cumstances at
we
During
pro-
the officer’s
was,
fact,
stop.
after
not free to leave
valid traffic
pellant
ex-
li-
the defendant’s
cessing
stop,
his driver’s
Trooper DeLuca returned
Rather,
subjected to
evidenced
visi-
Appellant was
treme
cense.
nervousness
Although the defendant
investigatory
trembling.
detention.
ble
documenting the
paperwork
produced
¶ However,
also conclude
we
incomplete
it
ownership of the
DeLuca
by Trooper
adduced
facts
defen-
that the
and contained information
of the valid traffic
during the course
The defendant
admitted to be false.
dant
him reason
unequivocally gave
clearly and
just had
he
visit-
the officer that
informed
Kyles
were
suspect
Appellant
friend,
provide
but could not
ed a
substance,
possession
of a controlled
officer also observed
friend’s name.
*8
thus,
facts to
there were sufficient
and
laundry detergent and fabric
of
open boxes
detention.3 When
justify
investigatory
that,
experience,
on his
based
softener
open
the car’s
trooper
approached
first
A
masking agents.
crimi-
serving as
were
window,
by the scent
overpowered
he was
defen-
that the
history
nal
search revealed
He observed sufficient
of air fresheners.
drug
conviction.
prior
dant had
in
vehicle to
air fresheners
number of
to exit his
defendant was asked
21 The
conclusion, based on his extensive
reach a
it,
of
but
permit
and to
a search
trafficking
car
drug
training
experience
Two canine searches
refused.
interdictions,
were
defendant
the air fresheners
that
conducted,
dogs
twice alerted
to ob- were
masking agent
being utilized as
Plasticert, Inc. v.
any
basis.
noted,
court on
valid
concluded
suppression court
As
Co.,
(Pa.Su-
sub-
A.2d 489
Kyles
Appellant had not been
923
Ins.
Westfield
Howev-
investigatory detention.
jected to an
per.2007).
er,
the trial
that we can affirm
it is established
for
presence
of a
case,
controlled substance.
present
Trooper
In the
DeLu-
A
pursuant
search conducted
to a warrant
ca
only
observed two indicia
a drug
of
presence
revealed the
fifty-two pounds
courier,
presence
masking agent
of a
marijuana
in the vehicle.
and third-party
ownership,
vehicle
he de-
marijuana
tected
odor of fresh
indicat-
¶ 22 The Supreme Court first addressed
ing that a significant amount of that sub-
the issue of whether the officer “had rea-
Furthermore,
present.
Kyles
stance was
sonable suspicion to detain [the defendant]
nervousness,
displayed extreme
Appellant
beyond the initial
stop.”
Id. at
provide
did not
the correct name of the
1189. It
pertinent
outlined the
law:
owner,
they
car’s
traveling
were
from
police
A
may
officer
detain an individ-
Thus,
city.
a source
Trooper DeLuca had
ual in order to conduct an investigation
more facts at his disposal to establish rea-
if that officer reasonably suspects that
sonable
than did the officer in
the individual
engaging
is
in criminal
Rogers.
Cook,
conduct. Commonwealth v.
50,
(1999).
673,
Pa.
735 A.2d
“This
¶ 25
clearly
This case is
distinguishable
standard,
stringent
less
probable
than
from
upon
relies,
which Appellant
cause, is commonly known as reasonable
Dales,
Commonwealth v.
U.S.
88 S.Ct.
police instructions Johnson, 833 A.2d displayed and stay to in the car monwealth refused Johnson, a driver was anxiety. the officer was (Pa.Super.2003). extreme While violation, he dis- speeding. vehicular The defendant processing stopped the for stopped, the permission that the defendant had in car. Once passenger covered a the it, car, ap- to drive immediately from the owner of the vehicle exited the driver officer, license driver’s but that the defendant’s and insisted proached the the suspended driving for under had been After conduct- urinate. that he needed to issuing warning a and influence. After feeling large patdown search and ing the paperwork, the defendant’s returning cash, driver admitted was which the wad that he was informed the defendant $2,300, allowed the driver the officer about not drive that he could free to leave but car. and return to the to relieve himself vehicle. the rolling papers officer then observed The by drug users consistent with those used retrieving his As the defendant was around the inte- spread as tobacco as well the defendant belongings, the officer asked processed car. The officer rior in and anything illegal if he had violation, the driver’s returned speeding negative. in the responded the defendant documentation, he informed the driver car, the to search the Police then asked could go. Before the driver was free to consented, drugs were dis- defendant leave, questioning. the officer reinitiated covered. interdiction, the officer ensuing During the stop traffic con- held that the 29 We support facts to belief gathered sufficient the de- the officer returned cluded when illegal had of the car occupants that the him that he paperwork and told fendant’s in defen- were discovered drugs, which that a to then held was free leave. We possession. dant’s initiated when the detention was second questioning giving after first concluded that appeal, officer started we 31 On engaged that the defendant could leave. in a custodial impression police officer second detention contact af- concluded that he re-initiated We detention when suspicion stop. We supported by reasonable of the traffic completion was not ter stated, behav- hold- analyzed defendant’s] applied [the “While then Ortiz investigative deten- during the initial ing ior as follows: inquiry further may tion have merited here, issue Where, the detention at as illegal anxiety if was due his determine an ar- stop, prior follows a valid conduct, after the con- nothing happened cause must demonstrate resting officer give [police] of the initial clusion initial after end suspicion for at 266 suspicion.” for
further cause any basis on which stop independent the defen- original). in Since (emphasis Ortiz, stop. See conducted that he had been search the car dant’s consent to (“Without existence of at 266 A.2d de- through an unconstitutional obtained after the first en- discover- tention, drugs suppressed we ended, the second detention counter had car. ed unlawful”). Ortiz, Thus, rec- we
¶30 where defendant’s ognized that even implies language quoted “may initial during the lan- conduct “free-to-go an officer confers once the ar- inquiry,” further have merited facts ascer- may rely upon guage,” he *10 defen- to the resting officer’s instruction verbiage of that prior to conferral tained leave vitiated he was free to dant that suspicion. This reasonable to establish ments, that she any he had to the defen- and stated was free grounds hold id., at 266. trooper away. dant further. See 786 A.2d leave. walked When The suspi- trooper Absent some new observation of away, not drive the Freeman did circumstances, cious the defendant’s her her vehicle and asked returned to illegal. continued detention was the again traveling she was with whether nega- repeated other After she her car. Id. at 763. that trooper the indicated response, tive Johnson, Thus, under Chtiz and the had of the other occupants the vehicle in Pennsylvania current that provides law contradicted that information. He ordered once a a police informs defendant it. her from car and asked to search her that free to a completing he is leave after permission, and contraband gave Freeman stop, any
valid traffic
facts ascertained
Supreme
sup-
Our
was discovered.
Court
during
initial traffic stop
that
are nullified
search,
pressed
fruits of that
conclud-
the
may
not be utilized to
a con-
support
ing
had initiated a seizure when
detention,
tinued
even if the facts discover-
or-
they re-approached Freeman’s car and
ed
during
processing
stop
of the traffic
it.
dered her to exit
The Court concluded
support
suspi-
the existence of reasonable
supported
that the detention
cion
in
engaging
defendant
suspicion.
reasonable
illegal activity. We
to ana-
proceed
now
lyze the
of that
propriety
legal construct.
Ortiz,
page
In
we referenced
In
support
concept,
this
both Ortiz
a
support
position
of our
Freeman
upon
Johnson relied
Commonwealth
second
initiated after a traffic
detention
Freeman,
(2000).
563 Pa.
with her. traveling she was with fact that vehicle, suspicion had such been trooper re-approached The first other gave he warning for a Freeman warn- gave present her a when Freeman’s go. infraction, her that she was free to ing docu- and told vehicular returned her *11 ¶ decision is that Ortiz’s conclu- 39 We conclude happened had after the Nothing First, reasons. improper for two distinct any stop provide traffic sion of the for a most, analytically inconsistent simply it is suspicion; for further cause lan- “free-to-go” argue defendant to drive apparent reluctance Freeman’s inter- step police does not down guage strengthened troop- away may have encounter, to a mere diction from a seizure that the two vehi- initial er’s those if an officer does utter but together. traveling cles were words, lawfully by the all ascertained facts Freeman, at 908. supra stop traffic are during police conceded that Supreme 36 The Court analyzing whether purposes for erased evasive be- answers constituted Freeman’s permissible. continued detention evasiveness, standing but held havior the traffic through achieved If the seizure alone, police with provide did not ended, thereby if the defen- never suspi- reasonable enough facts to establish continuing de- subject to a dant remained in criminal ac- engaged that she was cion pro- traffic infraction was tention when the tivity. why the cessed, is no reason then there during the observed the officer facts Freeman’s not believe that 37 We do cannot traffic constitutionally-proper proposition. language supports Ortiz’s of the justify continuation used to be quite in Freeman Supreme Court detention continuing If it is a detention. justify in order to plainly stated that defendant, free-to-go despite for the initial valid beyond the continued detention logic, it is a then the same language, detention, stop, police was the traffic which of the purposes for continuing detention suspicion that the de- needed reasonable investigation. police activity in criminal engaged fendant detention. that initial lawful independent of ¶40 believe that Additionally, we words, process the In once other conflicts adopted by Ortiz approach violation, they rely upon cannot traffic analysis. constitutional appropriate with detention; prolong traffic violation to courts reviewing discussing how ‘When supporting they other information need reasonable-suspicion determi make should suspicion. reasonable they nations, repeatedly that we have said circum ‘totality Freeman, must look at the ascer- no facts were case to see whether stances’ of each stop or thereafter during the traffic tained ‘particularized has a detaining officer suspicion that reasonable provide legal suspecting activity. objective basis’ for in criminal involved defendant was Arvizu, States v. wrongdoing.” United anything imply did not The Court S.Ct. 534 U.S. course of during the discovered (2002); supra; Rogers, accord justify an L.Ed.2d be utilized to stop could not Freeman, Indeed, totality-of-the-cireum- A supra. investigatory detention. ensuing to con allows the court approach stances analyzed what actually the Court disposal and at the officer’s sider all facts stop, which during the traffic were told disregard the court to require holding does contrary to the imply, would interdiction, during a valid adduced Ortiz, in those facts can be considered that those case, is, the traffic present in the suspicion which determining whether analy Indeed, constitutional routine stop. initi- detention investigatory existed for gath facts courts to utilize requires sis has been vehicular violation ated after a of a escalating phase each during ered processed. *12 defendant, police investigation determining by wheth- several air fresheners. The police properly driving, er acted as the interaction who also tense. appeared was police proceeded between and citizen to- stopped, displayed Once the defendant ex- wards an arrest. nervousness, including pulsating treme artery, currency in carotid and he had the ¶41 ap Three federal circuit courts of vehicle. The was ordered to defendant peal precise question. have considered this police wait in the vehicle while the traffic Williams, In United States v. 271 F.3d In being violations were handled. the (10th Cir.2001), police officer meantime, with a other officers arrived stopped violation, car moving for a capable detecting presence canine the during the course of processing the viola narcotics. The documents defendant’s tion, he made several that observations led warning were returned and a verbal him to conclude that the defendant was issued for the two violations. The defen- transporting drugs. though Even his sus agreed dant to remove the air fresheners picions aroused, had been the officer re patrol and exited the car. After the defen- turned the defendant’s vehicular docu cruiser, dant police exited the the ments and suggested that he could leave further questions started ask and even- by the stating, scene “Thanks lot. We’ll tually asked to search the car. The defen- you.” see Id. at 1265. The officer then dant agree, dog would not the was then re-initiated contact with the defendant employed to check the exterior of the him asking if he answering minded some dog and the car alerted. The questions. Eventually, drugs were discov searched, and cocaine and cash were dis- during ered a vehicular search. covered. ¶ 42 The defendant in argued Williams ¶ 44 suppressed
that once the officer
The district court
the
indicated that
evidence,
area,
drug
concluding
defendant could
leave the
“once
that “act
part
on the
lawful seizure
of the officer
occasioned
the traffic
any
nullified
ended,
suspicion
Foreman was
developed
seized
second
throughout
analyzing
pro-
time.” Id. at 782.
stop.” Id. at 1271.
[vehicular]
seizure,
appeals
priety
court of
of the second
disagreed.
It
district
noted
law,
opined
police
defendant had
court
that neither the
nor the
referenced no case
“rely
any
nor
court
tending
had the court
could
on
factors
any
uncovered
that im-
plied
suspicion
that a
show reasonable
that occurred
return of documentation “ne-
gates
prior
to the termination of the traffic
objectively
officer’s
stop[.]”
no indicia of
suspicions developed
Id. Since
during
stop.”
a traffic
ended,
occurred after the traffic
Id.
1271. The court of appeals conclud-
ed that
district court concluded that
the second
officer’s “indication to
seizure violated the Fourth Amendment.
[the
that he was free
defendant]
to leave
significance
bears no
in our determination
appeal,
45 On
the Fourth
Court
Circuit
of whether
[police]
had reasonable sus-
Appeals
ap-
addressed “whether it was
picion to detain [the
defendant].”
court,
propriate
the district
in deter-
for
¶43 Next, the Fourth
reasonable sus-
mining
Circuit Court of
whether there was
sniff,
Appeals considered
all
picion
drug dog
ignore
the issue
United
for the
(4th
Foreman,
States
man’s encounter with
¶49
case, Trooper De-
In this
suspicion.
whether
there was reasonable
disposal
Luca had sufficient facts at his
to
Appel
a
support
¶46
reasonable
case,
In the most recent
United
narcotics, and the
(8th
possession
lant was in
of
Fuse,
Cir.2004),
v.
¶ 47
appeal,
Eighth
On
Circuit Court
made volun
proven that the consent was
Appeals
“question
entertained the
of
of
product of duress or
tarily and was not the
objectively
whether an officer’s
reasonable
coercion.”).
a traffic
suspicions developed during
indicates to a
are nullified when the officer
is
A search conducted without warrant
driver he is free to leave.” Id. The circuit
and there-
deemed to be unreasonable
question
nega-
in the
court answered
un-
constitutionally impermissible,
fore
of a
tive and held
“the termination
applies.
exception
less an established
effectively
does not
erase
Bustamante, 412
See Schneckloth v.
U.S.
objectively
suspicions devel-
219,
2041, 2043,
L.Ed.2d
93 S.Ct.
36
oped by
police
during
the traffic
(1973).
exception is con-
854
One such
the court
stop.”
again,
Id. at 929. Once
sent,
voluntarily given. See id.
of
appeals
upon
reasoning
relied
The central Fourth
¶48 Thus, validity citizen/police encounter position has the Ortiz consent; and, ultimate- accepted system. giving in the federal rise to not been id.; See ly, voluntariness of consent. reasoning It supported is also Cleckley, apply see also Commonwealth required Freeman. We are (1999). 517, 528, Pa. 738 A.2d “totality the circumstances” test as underlying encounter sus- Where sessing police whether had reasonable lawful, the citizen’s move- found to be voluntariness be- whether directed 4) ments; and manner of comes the exclusive focus. demeanor 5) interdic- expression; the location of the Strickler, supra Commonwealth v. at 888- 6) tion; questions the content of the (footnote omitted). 7) statements; and character the existence inquiry In connection with into the [the detention, in- investigative of the initial given pursu- voluntariness of consent 8) coerciveness; cluding degree its encounter], ant a lawful Com- has been told that he person whether the of estab- monwealth bears the burden *14 9) leave; citizen to and whether the free lishing product that a consent is the of required has been informed that he is not essentially free and unconstrained Id. at to consent to the search. 898-99. choice—not the result of duress or ¶ coercion, Herein, express implied, po- or or a will there no excessive 51 was occurred totality physical overborne—under lice conduct. No contact citizens, and knowledge circumstances.... of between and the two [W]hile right display weapon. to refuse to consent to the the officer did not his Kyles a Trooper search is factor to be taken into ac- DeLuea did order to While count, is not re- exit the this directive was not exces- Commonwealth quired knowledge to such it was necessitated the fact demonstrate sive because driver and prerequisite establishing Kyles as to vol- was not licensed untary Additionally, consent.... al- had of the driver’s seat. to move out one, though inquiry objective Trooper is an There is no indication that DeLu- maturity, sophistication and mental ca acted The interdiction aggressively. (in- or along highway. Appellant emotional state of the defendant was does cluding age, intelligence capacity argue maturity to or sophisti- that he lacked will), intellectually incapable exercise free are to be taken into cation or was of exercising account.... free will. both
Since
the tests for voluntariness
¶ Moreover,
ini-
52
the character of the
centrally
and for a seizure
entail an ex-
detention,
investigative
stop,
tial
objective
amination of the
circumstances
ensuing investigatory
was routine and the
surrounding the
encounter
police/citizen
supported by
was
reasonable
detention
to determine whether there was a show suspicion.
Ap-
therefore conclude that
We
authority
impact upon
of
that would
pellant’s permission
product
was not the
citizen-subject’s perspective,
coercion,
in fact was volun-
duress or
but
substantial, necessary overlap
there is a
tarily given
though Appellant was not
even
analyses.
in the
refuse to consent to
informed that he could
Bustamonte,
the search.
v.
901-02.
Schneckloth
412
93 S.Ct.
Result. BY
CONCURRING STATEMENT MELVIN,
ORIE J.: majority’s agree While I with
affirmance of the trial court’s refusal evidence, I
suppress separately write I clarify that I do so on the basis that portion latter of the interaction
believe the Trooper DeLuca Appellant
between *15 not an investi-
was a mere encounter and
gative respects, In all other I detention.
agree majority’s cogent analysis. with the Pennsylvania,
COMMONWEALTH
Appellee SPRINGER, Appellant.
Carl W. Pennsylvania.
Superior Court of Aug.
Submitted 2008.
Filed Dec.