Com. v. Thimons, R. ( 2018 )

J-S63024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REBECCA LYNN THIMONS :
:
Appellant : No. 396 WDA 2018
Appeal from the Judgment of Sentence March 8, 2018
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0002708-2016
BEFORE: OTT, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 26, 2018
Rebecca Lynn Thimons (Appellant) appeals from the judgment of
sentence imposed following her convictions of driving under the influence of
alcohol (DUI) – general impairment, DUI – highest rate of alcohol, driving
while operating privilege is suspended or revoked, and driving with an open
alcoholic beverage container.1 Appellant challenges the trial court’s denial of
her pre-trial suppression motion. After careful consideration, we vacate
Appellant’s judgment of sentence, reverse the order denying her suppression
motion, and remand for further proceedings.
The trial court summarized the facts underlying Appellant’s arrest as
follows:
Officer [Christopher] Kopas [(Officer Kopas)] testified that on
November 6, 2016, at approximately 1:09 a.m., he was checking
____________________________________________
1 75 Pa.C.S.A. §§ 3801(a)(1), (c), 1543(b)(1.1)(i), 3809(a).
____________________________________
* Former Justice specially assigned to the Superior Court.
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the businesses located on Sharberry Lane in Adams Township. He
defined a business check as looking for suspicious activity in and
around businesses that are closed for the day. After Officer Kopas
completed a business check of Luciano’s restaurant, he continued
west on Sharberry Lane to the Lightening Bug business when he
observed a gold Buick SUV traveling north from behind the back
of the business. As the officer entered the Lightening Bug parking
lot, the gold SUV turned towards the front of the building and into
a parking space. Officer Kopas decided to check on the well-being
of the SUV driver and pulled into a parking space behind the SUV.
Officer Kopas activated the red and blue cruise lighting system.
He was patrolling alone that day and informed dispatch of his
location. He approached the SUV and while talking with the driver,
[Appellant], he detected indications of alcoholic beverage
ingestion and impairment. Officer Kopas asked for her driver’s
license to which [Appellant] replied that she did not have her
license. Officer Kopas asked [Appellant] for her name and date of
birth. In the meantime, Officer Jason Giallorenzo arrived as
backup assistance and informed Officer Kopas that [Appellant]
was a DUI[-]suspended driver.
Officer Kopas testified that during this interaction, he was
standing next to the open window of [Appellant]’s driver’s door.
He stated that he parked the police car in a space behind
[Appellant]’s SUV and that she was not blocked in. Next,
[Appellant] performed three (3) standardized field sobriety tests,
the horizontal gaze nystagmus (HGN), the walk and turn, and the
one-leg stand. The results of the HGN were inconclusive and the
other two tests indicated impairment. The PBT (portable breath
test) indicated alcohol consumption. [Appellant] was placed
under arrest for suspicion of driving under the influence and asked
to submit to a blood test. [Appellant] said sure. [Appellant] was
transported to UPMC Cranberry for a blood draw. Officer Kopas
testified that because [Appellant] consented to the blood test, he
did not present nor read the information contained in the Penn
DOT DL-26 form. At the hospital, [Appellant] was presented with
the UPMC consent form, [Appellant]’ Exhibit “A,” which was signed
by [Appellant] indicating that she consented to the blood draw.
Memorandum Opinion and Order, 8/11/17, at 2.
On December 1, 2016, the Commonwealth filed a criminal complaint
charging Appellant with (DUI) – general impairment, DUI – highest rate of
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alcohol, driving while operating privilege is suspended or revoked, and driving
with an open alcoholic beverage container. On May 22, 2017, Appellant filed
a pre-trial motion to suppress. Appellant alleged that Officer Kopas conducted
an investigatory detention and lacked the reasonable suspicion necessary to
do so. Additionally, Appellant asserted that the evidence obtained from her
blood draw was inadmissible because the police did not inform her of her right
to refuse a warrantless blood draw. On June 16, 2017, the trial court held a
hearing on Appellant’s suppression motion. On August 11, 2017, the trial
court denied the motion.
On January 26, 2018, the trial court found Appellant guilty of all charges.
On March 8, 2018, the trial court sentenced Appellant to 60 months of
intermediate punishment, with the first 90 days to be served on house arrest,
a consecutive term of 90 days of electronic monitoring, and a 12-month
license suspension. The following day, Appellant timely appealed to this
Court. Both the trial court and Appellant have complied with Pennsylvania
Rule of Appellate Procedure 1925.
On appeal, Appellant presents the following issues for review:
1. WHETHER THE TRIAL COURT ERRED, AS A MATTER OF LAW,
WHEN IT DENIED APPELLANT’S OMNIBUS PRE[-]TRIAL MOTION
CHALLENGING THE LEGALITY OF HER TRAFFIC STOP AND
SUBSEQUENT DETENTION BY LAW ENFORCEMENT?
2. WHETHER THE TRIAL COURT ERRED, AS A MATTER OF LAW,
WHEN IT DENIED APPELLANT’S OMNIBUS PRE[-]TRIAL MOTION
CHALLENGING THE LEGALITY OF HER BLOOD DRAW BASED UPON
LACK OF KNOWING CONSENT?
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Appellant’s Brief at 8.
Our standard of review is as follows:
[An appellate court’s] standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, [the appellate court] is bound by [those]
findings and may reverse only if the court’s legal conclusions are
erroneous. Where . . . the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to [ ] plenary review.
Commonwealth v. Mason, 130 A.3d 148, 151-52 (Pa. Super. 2015)
(quotations and citations omitted).
First, Appellant argues that her traffic stop was illegal. Appellant asserts
that her traffic stop was an investigatory detention, as opposed to a mere
encounter, because Officer Kopas pulled his patrol vehicle behind her car and
activated the vehicle’s lights. Appellant maintains that the activation of the
police vehicle’s lights indicated that she was detained for purposes of the
Fourth Amendment. Consequently, Appellant contends that because he was
unable to articulate at the suppression hearing any specific facts indicating
that she was involved in criminal activity, Officer Kopas lacked the reasonable
suspicion necessary to conduct an investigatory detention. In response, the
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Commonwealth argues that Officer Kopas had reasonable suspicion to stop
Appellant’s vehicle.
“The Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from
unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d
889, 892 (Pa. Super. 2012). “To secure the right of citizens to be free from
such [unreasonable] intrusions, courts in Pennsylvania require law
enforcement officers to demonstrate ascending levels of suspicion to justify
their interactions with citizens as those interactions become more intrusive.”
Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa. Super. 2007). Courts in
this Commonwealth have recognized three types of interactions between the
police and a citizen: a mere encounter, an investigative detention, and a
custodial detention.
A mere encounter between police and a citizen need not be
supported by any level of suspicion, and carr[ies] no official
compulsion on the part of the citizen to stop or to respond. An
investigatory stop, which subjects a suspect to a stop and a period
of detention . . . requires a reasonable suspicion that criminal
activity is afoot. A custodial search is an arrest and must be
supported by probable cause.
Commonwealth v. Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017).
This Court has explained that when determining whether an interaction
is a mere encounter or an investigative detention:
the focus of our inquiry is on whether a seizure of the person has
occurred. Within this context, our courts employ the following
objective standard to discern whether a person has been seized:
[w]hether, under all the circumstances surrounding the incident
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at issue, a reasonable person would believe he was free to leave.
Thus, a seizure does not occur simply because a police officer
approaches an individual and asks a few questions.
Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010) (citations,
quotation marks, and ellipses omitted).
In support of her claim that the traffic stop was an investigatory
detention and not a mere encounter, Appellant relies on our Supreme Court’s
decision in Commonwealth v. Livingstone, 174 A.3d 609 (Pa. 2017), which
the Supreme Court decided approximately three months after the trial court’s
denial of Appellant’s suppression motion in this case. In Livingstone, the
Supreme Court held that the activation of a police car’s lights upon pulling
alongside a vehicle indicated that the individuals inside the vehicle were
“seized and subjected to an investigative detention.” Id. at 625.
In so holding, our Supreme Court explained:
To determine whether a citizen’s movement has been
restrained, courts must consider the totality of the circumstances,
“with no single factor dictating the ultimate conclusion as to
whether a seizure has occurred.” [Commonwealth v. Strickler,
757 A.2d 884, 890 (Pa. 2000)]. In [United States v.
Mendenhall, 446 U.S. 544 (1980)], the high Court indicated that
the following factors suggest a seizure occurred: “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 be compelled.” [Id.] at 554[.] The Court
explained that, absent evidence of the factors identified above,
“otherwise inoffensive contact between a member of the public
and the police cannot, as a matter of law, amount to a seizure of
that person.” Id. at 555[.]
Similarly, in Commonwealth v. Jones, this Court explained
that, in order to determine when a “stop” has occurred, “subtle
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factors as the demeanor of the police officer, the location of the
confrontation, the manner of expression used by the officer in
addressing the citizen, and the content of the interrogatories or
statements,” must be considered. []378 A.2d 835, 839-40 (1977)
(recognizing that, while a police uniform is a symbol of authority,
a uniform is not, in and of itself, a sufficient exercise of force to
render an interaction between an officer and a citizen a “stop”).
The pivotal inquiry is whether, in light of the facts and
circumstances identified above, “a reasonable man, innocent of
any crime, would have thought (he was being restrained) had he
been in the defendant’s shoes.” Id. at 840 (citation omitted). The
Jones/Mendenhall standard has been consistently followed in
Pennsylvania in determining whether the conduct of the police
amounts to a seizure, or whether there is simply a mere encounter
between citizen and police officer. Commonwealth v. Matos, []
672 A.2d 769, 774 ([Pa.] 1996).
It is undeniable that emergency lights on police vehicles in this
Commonwealth serve important safety purposes, including
ensuring that the police vehicle is visible to traffic, and signaling
to a stopped motorist that it is a police officer, as opposed to a
potentially dangerous stranger, who is approaching. See
[Commonwealth v. Johonoson, 844 A.2d 556, 562 (Pa. Super.
2004)]. Moreover, we do not doubt that a reasonable person may
recognize that a police officer might activate his vehicle’s
emergency lights for safety purposes, as opposed to a command
to stop. Nevertheless, upon consideration of the realities of
everyday life, particularly the relationship between ordinary
citizens and law enforcement, we simply cannot pretend that a
reasonable person, innocent of any crime, would not interpret the
activation of emergency lights on a police vehicle as a signal that
he or she is not free to leave.
Indeed, the Pennsylvania Driver’s Manual (“PDM”) instructs
drivers how to proceed “if [they] are stopped by police.” The PDM
first provides: “You will know a police officer wants you to pull
over when he or she activates the flashing red and blue lights on
top of the police vehicle.” Pa. Driver’s Manual at 78, available at
http://www.dot.state.pa.us/Public/DVSPubsForms/BDL/BDLManu
als. The PDM further “recommends” that drivers follow certain
procedures “[a]nytime a police vehicle stops behind you.” Id.Those procedures include turning off the engine and radio, rolling
down a window to enable communication with the officer, limiting
their movements and the movements of passengers; placing their
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hands on the steering wheel; keeping the vehicle doors closed and
remaining inside the vehicle; and keeping their seatbelt fastened.
Id. If these instructions do not explicitly instruct motorists who
are already stopped on the side of the road that they are not free
to leave when a police vehicle, with its emergency lights activated,
pulls alongside their vehicle, we conclude that it is eminently
reasonable that a motorist would believe he or she is not free to
leave under these circumstances.
Moreover, pursuant to Pennsylvania’s Motor Vehicle Code, a
driver of a motor vehicle “who willfully fails or refuses to bring his
vehicle to a stop, or who otherwise flees or attempts to elude a
pursuing police officer, when given a visual and audible signal to
bring the vehicle to a stop,” may be convicted of a second-degree
misdemeanor. 75 Pa.C.S. § 3733(a), (a.2). A police officer’s
signal may be “by hand, voice, emergency lights or siren.” Id. §
3733(b).
* * *
The fact that motorists risk being charged with violations of the
Motor Vehicle Code if they incorrectly assume they are free to
leave after a patrol car, with its emergency lights activated, has
pulled behind or alongside of them, further supports our
conclusion that a reasonable person in Appellant’s shoes would
not have felt free to leave.
Id. at 621-22.
Here, there is no dispute that not only did Officer Kopas pull his patrol
vehicle behind Appellant’s parked car, but he did so with his lights activated.
See N.T., 6/16/17, at 6. Indeed, the Commonwealth concedes that
Appellant’s interaction with Officer Kopas was not a mere encounter.
Commonwealth’s Brief at 3. We therefore conclude that Officer Kopas’ stop
of Appellant’s vehicle constituted an investigatory detention. Accordingly, we
must determine whether Officer Kopas possessed reasonable suspicion
necessary to stop Appellant’s vehicle. See Cooper, 994 A.2d at 592.
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When evaluating the legality of investigative detentions, Pennsylvania
has adopted the holding of Terry v. Ohio, 392 U.S. 1 (1968), where the
United States Supreme Court held that police may conduct an investigatory
detention if they have reasonable suspicion that criminal activity is afoot. In
re: D.M., 781 A.2d 1161, 1163 (Pa. 2001). These encounters with police are
commonly known as Terry stops. In order to prove reasonable suspicion,
“the police officer must be able to point to specific and articulable facts and
reasonable inferences drawn from those facts in light of the officer’s
experience.” Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999). “The
determination of whether an officer had reasonable suspicion that criminality
was afoot so as to justify an investigatory detention is an objective one, which
must be considered in light of the totality of the circumstances.”
Commonwealth v. Walls, 53 A.3d 889, 893 (Pa. Super. 2012).
Based on our review of the certified record on appeal, including the
transcript of Appellant’s suppression hearing, we conclude that there is no
evidence to support a finding that Officer Kopas possessed the reasonable
suspicion necessary to stop Appellant’s vehicle. Officer Kopas explained his
decision to stop Appellant’s vehicle as follows:
[Officer Kopas]: After I completed performing a business check
of Luciano’s Restaurant, I proceeded west on Sharberry Lane. As
I’m coming down the hill between that business and what’s called
the Lightning Bug, which is just, like, a family fun center, like an
arcade, I observed a gold Buick Rendezvous SUV traveling north
in that parking lot coming from the back side of that business. As
I’m proceeding down to the driveway area, or the entrance, that
vehicle turns towards the front of the building and pulls into a
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parking space. So I check on the well-being of that person and to
kind of check the area, if there is anything that anybody would
need help with.
Obviously, no one is usually there at 1:09 in the morning, so
something may be off. So I did pull into a parking space behind
the vehicle.
N.T., 6/16/17, at 5-6.
Officer Kopas’ testimony points to no specific or articulable facts
indicating that he possessed the reasonable belief that criminality was afoot.
Officer Kopas did not identify any crime (e.g., DUI, possession or distribution
of controlled substances, burglary, etc.) that he believed Appellant may have
committed or may have been in the process of committing. All the record
indicates is that at approximately 1:00 a.m., Appellant drove her vehicle
behind a closed business and parked her car in an empty parking lot in front
of that business. Moreover, the Commonwealth, in its appellate brief, did not
identify any crime that Officer Kopas could have reasonably believed Appellant
had committed. The Commonwealth only asserts that, because Appellant was
in a parking lot late at night in front of a closed business, Officer Kopas “had
reason to suspect that something was not right.” Commonwealth Brief at 6.
This does not amount to reasonable suspicion.
The record reflects that Officer Kopas and Appellant were engaged in a
mere encounter:
[Defense Counsel]: So when you came in and you just thought
that a car in the lot at that time was an awkward situation for you
to encounter, you wanted to do, I think you said, a well-being
check, right?
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[Officer Kopas]: Yes. With a vehicle coming from the back side
of the business, then parking in front of that business at that hour,
I wanted to make sure everything was okay.
* * *
[Defense Counsel]: And you, at that time you still considered this
a welfare check?
[Officer Kopas]: Correct. Yes. It was a mere encounter aspect.
[Defense Counsel]: And then nothing until you reached the
driver’s side window when you encountered [Appellant]? There
was no other indication of anything else occurring, correct?
[Officer Kopas]: No, nothing I had detected.
N.T., 6/6/17, at 15.
Thus, although Officer Kopas may have intended for his interaction with
Appellant to begin as a mere encounter, Livingstone instructs that a police
officer must have reasonable suspicion to approach a parked vehicle with the
patrol car’s lights activated. Because he did not possess such reasonable
suspicion, Officer Kopas’ stop of Appellant’s vehicle was illegal.
In sum, and consonant with Livingstone, we conclude that Officer
Kopas’ stop of Appellant’s vehicle was illegal. Thus, we need not address
Appellant’s claim that she did not knowingly consent to the blood draw. We
therefore vacate Appellant’s judgment of sentence, reverse the order denying
the suppression motion, and remand for further proceedings.
Judgment of sentence vacated. Suppression order reversed. Case
remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2018
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