Com. v. Givler, B.

J-A15026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRANT N. GIVLER : No. 1996 MDA 2017
Appeal from the Order Entered December 7, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005883-2017
BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED JULY 30, 2018
The Commonwealth of Pennsylvania (Commonwealth) appeals from the
order granting Appellee Brant N. Givler’s suppression motion. For the reasons
that follow, we affirm.
The trial court summarized the facts presented at the suppression
hearing as follows:
[Officer Mark Jackson (Officer Jackson)] testified that close to
midnight on June 20, 2017, he observed a Chevrolet pickup truck
parked in the middle of a private parking lot adjacent to Long Level
Road, north of the Dock 2 Boat Ramp in York County,
Pennsylvania. Officer Jackson stated that he had driven past that
location while on patrol an hour and a half earlier and had not
observed the vehicle. Officer Jackson approached the vehicle and
observed [Appellee] asleep in the driver seat, with the window
rolled down, and the radio on. The officer observed the keys of
the pickup truck to be in the ignition[,] but the engine was not
running. [Appellee] had a bottle of Yuengling Beer in between his
lap.
After Officer Jackson approached the vehicle, he attempted to
wake [Appellee]. Once awake, Officer Jackson observed signs of
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impairment. Officer Jackson stated [Appellee] told him he had
bought a six-pack of beer from the River Beverage in Wrightsville,
Pennsylvania, around 7 p.m. that evening. Officer Jackson
testified that [Appellee] told Officer Jackson that he began
drinking the six-pack of beer shortly after he purchased it and
then took his dog to a park in Wrightsville and then drove to the
boat ramps around 10 p.m. that night. Subsequently, upon
further investigation by Officer Jackson, [Appellee] was arrested
on suspicion of [driving under the influence of alcohol (DUI)].
[Appellee] was then taken to [c]entral [b]ooking where he was
read an updated DL-26B form and consented to a blood draw.
Trial Court Opinion, 12/7/17, at 3-5 (record citations omitted).
Appellee was charged with DUI – general impairment and DUI – high
rate of alcohol.1 On November 6, 2017, Appellee filed a pre-trial motion to
suppress in which Appellee argued that his arrest for DUI and subsequent
blood draw were unconstitutional. On November 22, 2017, the trial court held
a hearing on Appellee’s suppression motion. On December 7, 2017, the trial
court granted Appellee’s motion concluding that Officer Jackson did not
possess probable cause to arrest Appellee for DUI. See id. at 5. The
Commonwealth timely appealed to this Court.2 Both the trial court and the
Commonwealth have complied with Rule 1925 of the Pennsylvania Rules of
Appellate procedure.
On appeal, the Commonwealth presents the following issue for review:
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1 75 Pa.C.S.A. § 3802(a)(1), (b).
2 The Commonwealth certified that the trial court’s December 7, 2017 order
would terminate or substantially handicap the prosecution of this criminal
offense pursuant to Rule 311(d) of the Pennsylvania Rules of Appellate
Procedure.
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Did the suppression court err in suppressing the evidence obtained
as a result of Officer [] Jackson’s interaction with [Appellee] where
the interaction was a mere encounter requiring no level of
suspicion, the mere encounter gave rise to reasonable suspicion
for Officer Jackson to conduct an investigatory detention, and, as
a result of the lawful interaction, Officer Jackson gained probable
cause to arrest [Appellee]?
Commonwealth’s Brief at 4.
The standard of review for addressing a trial court’s order granting a
suppression motion is as follows:
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. The suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Vetter, 149 A.3d 71, 75 (Pa. Super. 2016), appeal
denied, 169 A.3d 577 (Pa. 2017) (quotations and citations omitted).
“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
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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 versus 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
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 contrast, “a custodial detention
occurs when the nature, duration and conditions of an investigative detention
become so coercive as to be, practically speaking, the functional equivalent of
an arrest.” Commonwealth v. Mackey, 177 A.3d 221, 227 (Pa. Super.
2017) (quotations and citations omitted).
The Commonwealth argues that Officer Jackson’s interaction with
Appellee began as mere encounter and that upon discovering Appellee asleep
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in his vehicle with a bottle of beer between his legs, appropriately investigated
Appellee for DUI. The Commonwealth asserts that through this investigation,
Officer Jackson developed the probable cause necessary to arrest Appellee for
DUI.
The Commonwealth’s argument, much of which is devoted to its claim
that Officer Jackson’s interaction with Appellee began as a mere encounter,
largely misses the mark. The suppression hearing transcript reflects that the
trial court agreed with the Commonwealth that the interaction started as a
mere encounter. N.T., 11/22/17, at 33. The trial court had no issue with
Officer Jackson checking on Appellee’s vehicle when it was parked late at night
in a parking lot the officer reasonably believed to be closed to the public at
the time of night. Id. Thus, whether or not the interaction began as a mere
encounter had no bearing on the trial court’s decision.
Rather, the trial court concluded that Officer Jackson did not have
probable cause to arrest Appellee for DUI. Probable cause exists “where the
facts and circumstances within the officers’ knowledge are sufficient to
warrant a person of reasonable caution in the belief that an offense has been
or is being committed.” Commonwealth v. Stultz, 114 A.3d 865, 883 (Pa.
Super. 2015) (quotations and citations omitted). “We evaluate probable
cause by considering all relevant facts under a totality of circumstances
analysis.” Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007).
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Officer Jackson arrested Appellee for suspicion of DUI under Section
3802(a)(1) of the Motor Vehicle Code. Section 3802(a)(1) prohibits an
individual from “driving, operating, or in actual physical control of the
movement of a vehicle during the time when he or she was rendered incapable
of safely doing so due to the consumption of alcohol. Commonwealth v.
Teems, 74 A.3d 142, 145 (Pa. Super. 2013) (quotations and citation omitted).
The trial court found that there was no evidence that Appellee exercised
control over his vehicle while he was intoxicated. Trial Court Opinion, 12/7/17,
at 5.
We agree. The record reflects that around 10:30 p.m. on the night in
question Officer Jackson drove by the parking lot at issue, which was empty
at that time. N.T., 11/22/17, at 7. Officer Jackson stated that when he
returned approximately an hour-and-a-half later, he observed Appellee’s truck
parked in the middle of the lot. Id. at 6. When Officer Jackson approached
Appellee’s vehicle, he noticed that the engine was off, the keys were in the
ignition, the radio was on, and Appellee was asleep with a single bottle of beer
in his lap. Id. at 7-8. Officer Jackson testified that when he woke Appellee
and began to question him, Appellee told that he bought a six-pack of beer at
around 7:00 p.m. that evening and that he began drinking shortly after he
purchased it. Id. at 9-10. Appellee then told Officer Jackson that he took his
dog to the park and then drove to the boat docks. Id. at 10.
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These facts, in particular that Appellee was sitting intoxicated in a
parked vehicle with the engine off, do not support a conclusion that Officer
Jackson reasonably believed Appellee was in actual physical control over his
vehicle while intoxicated. As this Court has explained,
A brief review of the cases which considered the concepts of actual
physical control reveals that, at a very minimum, a parked car
should be started and running before a finding of actual physical
control can be made. See, e.g., Commonwealth v. Bobotas,
[] 588 A.2d 518 ([Pa. Super.] 1991) (car running with defendant
in parked car); Commonwealth v. Kloch, [] 327 A.2d 375 ([Pa.
Super.] 1974) (automobile parked, lights on, engine running,
driver asleep behind steering wheel); [Com., Dep’t of Transp.]
v. Farner, [] 494 A.2d 513 ([Pa. Cmwlth.] 1985) (engine running,
transmission in park, brake lights on, person behind wheel with
hands on steering wheel); Commonwealth v. Kallus, [] 243
A.2d 483 ([Pa. Super.] 1968) (car immobile in snow bank, engine
running).
Commonwealth v. Price, 610 A.2d 488, 490 (Pa. Super. 1992).
Moreover, the testimony indicating that Appellee admitted that he began
drinking earlier in the evening does not establish that he operated his vehicle
while intoxicated. Noticeably missing from Officer Jackson’s testimony was
any evidence as to the amount of alcohol consumed by Appellee throughout
the evening.3 There was also no evidence presented indicating when Appellee
last consumed alcohol or whether he consumed alcohol in close proximity to
the time he drove to the boat docks. Furthermore, there was no evidence
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3 We note that the Commonwealth asserts that Officer Jackson observed an
empty six-pack of beer in Appellee’s vehicle. Commonwealth’s Brief at 18.
There is, however, no evidence of record supporting this assertion.
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indicating the amount of alcohol he consumed out of the bottle that Officer
Jackson observed in Appellee’s lap.
As the trial court explained, the facts were “too tenuous to establish”
that Officer Jackson reasonably believed Appellee had operated his vehicle
while under the influence of alcohol. See Trial Court Opinion, 12/7/17, at 5.
Accordingly we conclude that the trial court did not err in determining that
Officer Jackson lacked probable cause to arrest Appellee for DUI.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/30/2018
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