Com. v. Linnen, C. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
COLIN LINNEN
Appellee No. 637 WDA 2013
Appeal from the Order entered March 19, 2013,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0016899-2008
BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED NOVEMBER 06, 2014
The Commonwealth appeals from the order entered by the Allegheny
County Court of Common Pleas granting the suppression motion of Appellee,
Colin Linnen (“Linnen”). We are constrained to reverse and remand.
The facts may be summarized as follows: On September 10, 2008,
Officers Ian Lucas and Ryan Coll of the Allegheny County Housing Authority
Police were on patrol in Clairton, Pennsylvania, at around 10:00 a.m., when
they drove past Linnen, who was standing in front of Building 17 of the
Millvue Acres housing development. N.T., 07/02/12, at 4-6. Officer Lucas
was familiar with Linnen from previous encounters with him. Id. The
officers turned their police vehicle around and approached Linnen, who had
begun to walk away. Id. at 4-6, 15. The officers exited their police vehicle
* Retired Senior Judge assigned to Superior Court.
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and approached Linnen, who had stopped walking and was standing with his
hands in his pockets. Id. at 7, 16-17. When the officers were approximately
five to ten yards from Linnen, Officer Lucas said to Linnen “What is up,
Colin” to which Linnen responded, “What is up, Lucas.” Id. at 7. Officer
Lucas asked Linnen what he was doing at that location since Linnen did not
live in the area, and Linnen responded that he was visiting his family. Id.
Officer Lucas noticed that Linnen was nervous, and that he kept his hands in
his pockets during the encounter. Id. at 8. Officer Lucas then said to
Linnen, “Colin, the last time I dealt with you, you had a little bit of weed on
you. Got anything illegal now?”, to which Linnen did not respond, although
he became tense, put his head down, and clenched his fists inside his
pockets. Id. Officer Lucas again asked Linnen if he had anything illegal on
him, to which Linnen responded “yeah, I got a little bit of weed” and pulled a
baggie out of his pocket, and handed it to the officer. Id. at 9. Officer Lucas
removed his handcuffs from his belt and told Linnen that he was under
arrest, whereupon Linnen fled. Id. at 8-9. Linnen was eventually
apprehended, and after a struggle with police, he was taken into custody.
Id. at 10. Once in custody, Linnen was subjected to a search which yielded
11.34 grams of crack cocaine and $309 in U.S. currency. Id. Linnen was
charged with possession with intent to deliver, possession, resisting arrest,
and disorderly conduct.
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On June 6, 2012, Linnen filed a pre-trial suppression motion.
Following a hearing on July 2, 2012, the trial court granted Linnen’s motion.
This appeal followed.1
The Commonwealth raises the following issues on appeal:
I. Whether the [trial] court erred in finding that the
interaction between [Linnen] and the police constituted an
investigatory detention rather than a mere encounter?
II. Whether the [trial court] erred in finding that Miranda
warnings were required during a non-custodial encounter
on a public walkway which lasted less than a minute?
Commonwealth Brief at 4.
When reviewing a Commonwealth appeal from the grant of a
suppression motion, “[w]e begin by noting that where a motion to suppress
has been filed, the burden is on the Commonwealth to establish by a
preponderance of the evidence that the challenged evidence is admissible.
In reviewing the ruling of a suppression court, our task is to determine
whether the factual findings are supported by the record. If so, we are
bound by those findings.” Commonwealth v. Burgos, 64 A.3d 641 (Pa.
Super. 2013) quoting Commonwealth v. Powell, 994 A.2d 1096, 1101
(Pa. Super. 2010) (citations omitted).
When the Commonwealth appeals from a suppression order, this
Court may consider only the evidence from the defendant's
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1
The Commonwealth certified in its notice of appeal that the trial court’s
order “would terminate or substantially handicap the prosecution.” Pa.R.A.P.
311(d).
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witnesses together with the evidence of the prosecution that,
when read in the context of the record as a whole, remains
uncontradicted. In our review, we are not bound by the
suppression court's conclusions of law, and we must determine if
the suppression court properly applied the law to the facts. We
defer to the suppression court's findings of fact because, as the
finder of fact, it is the suppression court's prerogative to pass on
the credibility of the witnesses and the weight to be given to
their testimony.
Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014). “It is
within the suppression court's sole province as factfinder to pass on the
credibility of witnesses and the weight to be given to their testimony. The
suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Elmobdy, 823
A.2d 180, 183 (Pa. Super. 2003) (citations omitted). “We are bound by the
suppression court's factual findings, if supported by the record; however, the
question presented—whether a seizure occurred—is a pure question of law
subject to plenary review.” Commonwealth v. Lyles, 97 A.3d 298, 302
(Pa. 2014).
Here, the Commonwealth challenges the trial court’s determination
that Officer Lucas’ and Officer Coll’s initial interaction with Linnen constituted
an investigative detention; the Commonwealth contends that the initial
interaction with Linnen was a mere encounter, “raising no Fourth
Amendment concerns.” Commonwealth Brief at 11-17.
In Pennsylvania, there are three categories of interaction between the
police and members of the public: 1) mere encounters, which are
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characterized by the fact that the suspect has no official compulsion to stop
or respond to the police, and which need not be supported by any level of
suspicion; 2) investigative detentions, in which suspects are required to stop
and submit to a period of detention, but are not subject to such coercive
conditions to qualify as an arrest, and which must be supported by
reasonable suspicion; and 3) arrests, or custodial detentions, which must be
supported by probable cause. Commonwealth v. Astillero, 39 A.3d 353,
357-358 (Pa. Super. 2012).
To determine whether a mere encounter rises to the level
of an investigatory detention, we must discern whether, as a
matter of law, the police conducted a seizure of the person
involved. To decide whether a seizure has occurred, a court
must consider all the circumstances surrounding the encounter
to determine whether the demeanor and conduct of the police
would have communicated to a reasonable person that he or she
was not free to decline the officer's request or otherwise
terminate the encounter. Thus, the focal point of our inquiry
must be whether, considering the circumstances surrounding the
incident, a reasonable person innocent of any crime would have
thought he was being restrained had he been in the defendant's
shoes.
Commonwealth v. Collins, 950 A.2d 1041, 1046-1047 (Pa. Super. 2008)
quoting Commonwealth v. Reppert, 814 A.2d 1196, 1201–1202 (Pa.
Super. 2002). See also Commonwealth v. Au, 42 A.3d 1002, 1004 (Pa.
2012).
Officer Lucas testified about his interaction with Linnen as follows:
Assistant District Attorney: On the day in question, when you
saw [Linnen], what was he doing?
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Officer Lucas: He was standing in front of the 17
building of Marion Circle or Millvue
Acres.
Assistant District Attorney: Did you approach him?
Officer Lucas: We turned our marked patrol car
around, then we got out of our car,
approached him.
Assistant District Attorney: So you approached on foot?
Officer Lucas: Yes, we did.
Assistant District Attorney; And when you walked up to him,
what did he do?
Officer Lucas: He was just standing there with his
hands in his pockets, just standing
there.
***
Officer Lucas: I said: What is up, Colin. ... He
said: what is up, Lucas. ... I said:
What are you doing down here,
you don’t live here.
Assistant District Attorney: What was his response?
Officer Lucas: He was visiting somebody.
Assistant District Attorney: After he said that, did you notice
anything else about him?
Officer Lucas: He was nervous at myself and
Officer Coll’s presence. You could
tell by his body language. He kept
his hands in his pockets the whole
time. Just kind of a rigidness
about him.
Assistant District Attorney: Did you say anything else to him?
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Officer Lucas: I said: Colin, the last time I dealt
with you, you had a little bit of
weed on you. Got anything illegal
now?
***
He didn’t really say anything. He
just put his head down and
clenched his fists. I could see him
tense up his hands still in his
pockets.
***
I repeated. I didn’t say weed this
time. I said, you got any – like
due to his hesitation, flinching I
mean, that hesitation to me in my
years of experience, he was trying
to formulate something, so I
quickly asked him again, I said, got
anything illegal on you?
Assistant District Attorney: Did he respond?
Officer Lucas: Yeah, I got a little bit of weed. He
immediately pulled out a clear
plastic bag and handed it to me.
***
I looked at [it] real quick, through
my training and experience
immediately recognized it to be
marijuana. I put it in my uniform
pocket. I said – grabbed my
handcuffs off my belt I said you’re
under arrest.
***
[Linnen] immediately fled on foot.
... He fought us after we caught
up to him.
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Assistant District Attorney: But you were finally able to take
him into custody?
Officer Lucas: Yes, sir.
N.T., 7/2/12, at 5-8.
The trial court concluded that, under the totality of the circumstances,
Officer Lucas and Coll’s interaction with Linnen constituted a seizure
warranting the suppression of all evidence. The trial court explained:
[T]he incident occurred between 10:00 and 11:00 a.m. It
occurred in a residential area and there was no testimony about
it being a high crime area. [Linnen] had begun walking from the
area of the initial encounter when the police first exited their
vehicle and approached [Linnen]. The officer opined that
[Linnen] appeared nervous. The officer knew [Linnen] had a
baby with a woman from the neighborhood, that [Linnen] was
not barred from the housing unit ... and that he was lawfully on
the premises to visit. Both officers were only 3-4 feet from
[Linnen] when they questioned him. [Linnen] was not asked by
police to remove his hands from his pockets and was never
asked to remove his hands for officer’s safety. [Linnen] was not
advised that he had a right to remain silent. The testimony was
devoid of any observation of criminal activity afoot as police
approached. The [trial] court disagreed that the event was a
mere encounter. Additionally, there was no legal basis for the
police to conduct an investigative detention, as there was no
reasonable suspicion to confront and question [Linnen]. No
reasonable person would have felt free to leave or to ignore the
police officer’s questioning. Under the totality of the
circumstances, the proximity of the officers to [Linnen], and the
questions asked by the officer, [the circumstances] amounted to
an investigative detention where no reasonable suspicion
existed. The [trial court] found that [Linnen] was effectively
detained and that any evidence seized as a result of the unlawful
detention was properly excluded.
Trial Court Opinion, 12/23/13, at 3-4.
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After careful review, we disagree, and conclude that the officers’ initial
interaction with Linnen constituted a mere encounter. “To determine
whether a mere encounter rises to the level of an investigatory detention,
we must discern whether, as a matter of law, the police conducted a seizure
of the person involved.” Collins, 950 A.2d at 1046-1047. “To guide the
crucial inquiry as to whether or not a seizure has been effected, the United
States Supreme Court has devised an objective test entailing a
determination of whether, in view of all surrounding circumstances, a
reasonable person would have believed that he was free to leave. In
evaluating the circumstances, the focus is directed toward whether, by
means of physical force or show of authority, the citizen-subject's movement
has in some way been restrained. In making this determination, courts
must apply the totality-of-the-circumstances approach, with no single factor
dictating the ultimate conclusion as to whether a seizure has occurred.”
Commonwealth v. Strickler, 757 A.2d 884, 889–90 (Pa. 2000) (internal
citations and footnotes omitted). “Examples of circumstances that might
indicate a seizure, even where the person did not attempt to leave, would be
the threatening presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the officer's
request might by compelled.” Commonwealth v. McClease, 750 A.2d
320, 324–25 (Pa. Super. 2000) quoting United States v. Mendenhall, 446
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U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). Moreover, “[The
Pennsylvania Supreme Court and the United States Supreme Court have
repeatedly held a seizure does not occur where officers merely approach a
person in public and question the individual or request to see identification.”
Lyles, 97 A.3d at 303. See also Commonwealth v. Coleman, 19 A.3d
1111, 1116 (Pa. Super. 2011) (“the approach of a police officer followed by
questioning does not constitute a seizure”).
Here, there is no evidence that when the officers turned their vehicle
around and approached Linnen on foot, they made any show of physical
force or display of authority. Officer Lucas testified that during his
interaction with Linnen, although he had a weapon, it was in its holster and
not drawn, and that neither he nor Officer Coll blocked Linnen or otherwise
prevented him from leaving or told him that he was not free to leave. N.T.,
6/2/12, at 8. Although Linnen initially walked away from the officers, the
officers did not aggressively or forcefully pursue him. Rather, the record
indicates that the officers “just kept walking until [Linnen] turned around at
looked at us.” Id. at 17. Moreover, Officer Lucas testified that when Linnen
walked away, he “did not call to [Linnen]” or demand that Linnen stop. Id.
There is nothing in the record to indicate that the police officers exhibited
any overt show of force or physical control over Linnen. To the contrary, the
record indicates that when the officers approached Linnen, they did not
restrain his movements, block him from leaving, or tell Linnen that he could
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not leave, and Officer Lucas testified that during the interaction, his tone
was “amicable.” Id. at 8, 26. Additionally, the officers did not direct Linnen
to empty his pockets, but only asked if he had anything illegal on him. Id.
at 7-8. Under the totality of these circumstances, as well as current case
law, we must conclude the police officers did not effectuate a seizure of
Linnen, and that their interaction with him constituted a mere encounter that
did not need to be supported by any level of suspicion.2 See Lyles, 97 A.3d
298, 305-306 (where an officer sees men sitting at a vacant building, there
is no impropriety in the officers approaching the men, nor in asking their
reason for loitering there, and the officer's request for identification does not
elevate the interaction from a mere encounter to an investigative detention);
Coleman, 19 A.3d at 1116 (where police officer approached the appellant
and asked him if he had a gun, that interaction constituted a mere encounter
that required no level of suspicion to be constitutionally valid);
Commonwealth v. Guess, 53 A.3d 895 (Pa. Super. 2012) (where police
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2
Because the interaction constituted a mere encounter, Linnen was not
entitled to receive Miranda warnings. See Commonwealth v. Garvin, 50
A.3d 694, 698 (Pa. Super. 2012) (“Miranda rights are required only prior to
a custodial interrogation. Custodial interrogation is ‘questioning initiated by
law enforcement officers after a person has been taken into custody or
otherwise deprived of [his] freedom of action in any significant way.’
Furthermore, volunteered or spontaneous utterances by an individual are
admissible without the administration of Miranda warnings. When a
defendant gives a statement without police interrogation, we consider the
statement to be ‘volunteered’ and not subject to suppression....
Interrogation is police conduct ‘calculated to, expected to, or likely to evoke
admission.’”)
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officer approached defendant without making any verbal command for
defendant to stop and without impeding his movement, but merely identified
himself and asked if defendant was willing to speak with him, a reasonable
person would have felt free to terminate the encounter during the initial
approach and questioning).
Following the officers’ initial approach and conversation with Linnen,
when Linnen voluntarily produced marijuana from his pocket and then fled,
the officers’ subsequent pursuit and arrest of Linnen was supported by
probable cause in light of Linnen’s provision of illegal drugs to the officers,
and his immediate flight when the officers attempted to handcuff him. We
conclude that the officers’ interaction with Linnen was supported by the
requisite level of suspicion at all stages, and therefore we reverse the trial
court’s grant of Linnen’s suppression motion.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2014
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