Com. v. Engelbert, D. ( 2016 )

J-S37018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DOUGLAS ENGELBERT
Appellant No. 1248 WDA 2015
Appeal from the Judgment of Sentence July 15, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001764-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
CONCURRING STATEMENT BY LAZARUS, J.: FILED JUNE 17, 2016
I join the majority because I agree that Corporal Grenci had
reasonable suspicion to believe that Engelbert was trafficking a controlled
substance.
However, I write separately to note my disagreement with the
suppression court’s reliance on Corporal Grenci’s conclusion that Engelbert’s
act of inquiring whether he was “free to go” confirmed that he had “prior
contact in these kinds of circumstances.” Trial Court Opinion, 12/1/14, at 3.
As Corporal Grenci testified, “[f]ree to go is very important in criminal
interdiction work . . . the normal innocent motoring public doesn’t know the
significance of free to go, but he did.” Suppression Hearing, 11/24/14, at
20.
J-S37018-16
In United States v. Mendenhall, 466 U.S. 544 (1980), Justice
Stewart noted that “a person has been ‘seized’ within the meaning of the
Fourth Amendment only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to
leave.” Id. at 554. This test was adopted by a majority of the Court in later
cases, see Michigan v. Chesternut, 486 U.S. 567, 573 (1988); INS v.
Delgado, 466 U.S. 210, 215 (1984). Accordingly, any law-abiding citizen
who studied the Fourth Amendment in a high school civics class would know
that asking whether he or she is free to leave is a reasonable question to ask
an officer as their interaction winds down.
Separate from their constitutional import, these words may simply be
a polite request from a citizen who wants to end an encounter with an
authority figure and continue on his or her way.
Therefore, I distance myself from the suppression court’s decision to
assign any weight to the fact that Engelbert asked if he was free to go.
GANTMAN, President Judge, joins this concurring statement.
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