Com. v. Ray, D.

J-A12006-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DELBERT J. RAY :
:
Appellant : No. 1343 WDA 2019
Appeal from the Judgment of Sentence Entered July 31, 2019
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000728-2018
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 18, 2020
Appellant, Delbert J. Ray, appeals from the judgment of sentence
imposed by the Court of Common Pleas of Beaver County (trial court) following
his conviction for driving under the influence (DUI) - high rate of alcohol.1
Appellant argues that the trial court erred in denying his motion to suppress
the results of a breath test for blood alcohol and other evidence, on the ground
that the evidence was obtained as a result of an investigative detention
without reasonable suspicion. For the reasons that follow, we affirm.
Appellant was arrested on the evening of February 3, 2018, after an
officer of the Pennsylvania State Police, Corporal Joseph Olayer, had followed
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(b).
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Appellant’s pickup truck and asked Appellant a number of questions after
Appellant had parked and walked away from his vehicle. Appellant filed a
motion to suppress and a hearing on the motion to suppress was held on
October 2, 2018. Two witnesses testified at the suppression hearing, Corporal
Olayer and Appellant.
The trial court judge who ruled on Appellant’s suppression motion found
the following facts:
On February 3, 2018, [Corporal] Olayer of the Pennsylvania State
Police was on patrol traveling south on SR 18 in Big Beaver
Borough when he observed a red Dodge truck (PA Registration
#ZLB-7237) traveling below the 50 mph posted speed limit in the
right lane. [Corporal] Olayer also observed the vehicle cross the
right fog-line with its passenger side tires.
Following these observations, [Corporal] Olayer used the left lane
to pull up alongside the subject vehicle in order to ascertain
whether the driver was using a cellular device in violation of the
Motor Vehicle Code. After this observation revealed no violation of
the Motor Vehicle Code, [Corporal] Olayer followed the subject
vehicle as it turned west onto SR 551. As [Corporal] Olayer
followed a few cars behind, he observed the suspect vehicle turn
south onto 5th Avenue, and [Corporal] Olayer continued to follow.
Soon thereafter, [Corporal] Olayer observed the suspect vehicle
make a left turn onto 47th Street, pull over to the curb, and park.
Trial Court Opinion, 11/2/18 at 1-2 (footnote omitted). After his initial
observation that Appellant’s vehicle had crossed the fog line, Corporal Olayer
observed no other Motor Vehicle Code violations while following the vehicle as
it turned onto SR 551 through the time it was parked on 47th Street; Appellant
did not speed, employed proper signaling, stopped at all stop signs, and made
all turns safely and within his lane. Id. at 2 n.3.
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The trial court further found that after Appellant parked his pickup truck,
[Corporal] Olayer remained on 5th Ave. and continued to observe
the suspect vehicle. At the suppression hearing, [Corporal] Olayer
testified that the vehicle was parked and shut off, but the driver
remained in the vehicle for several minutes. Eventually,
[Appellant] exits his vehicle, walks across 47th Street and
[Corporal] Olayer observed him continue down an alleyway that
runs parallel to 5th Avenue. At this point, [Corporal] Olayer ran
the suspect vehicle's plates and noticed that the address where
the vehicle was registered was nowhere near the present location.
After [Corporal] Olayer parked his cruiser, he continued on foot
down an alley way that runs behind the Edgewater Inn and parallel
to the alley way [Appellant] walked down. As [Corporal] Olayer
neared the parking lot of the Edgewater Inn, he observed the
[Appellant] emerge from around a corner and walk towards the
Edgewater Inn. At this point, [Corporal] Olayer approaches the
[Appellant] and, “started making small talk with him[.]”
Trial Court Opinion, 11/2/18 at 2 (footnotes omitted) (quoting suppression
hearing transcript). Corporal Olayer was in uniform when he approached
Appellant. Id. at 8; N.T. Suppression Hearing at 75. During the course of
this conversation, Corporal Olayer concluded that Appellant smelled of alcohol
and, shining a flashlight on Appellant, he observed that Appellant’s eyes were
bloodshot. Trial Court Opinion, 11/2/18 at 3-5, 10; N.T. Suppression Hearing
at 17.
Corporal Olayer then asked Appellant to submit to field sobriety tests
and following the field sobriety tests, placed Appellant under arrest for DUI
and transported him to the state police barracks for a breath test. Trial Court
Opinion, 11/2/18 at 4-5; N.T. Suppression Hearing at 25; N.T. Trial at 23-24.
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The breath test showed that Appellant’s blood alcohol level was .132. N.T.
Trial at 6-9.
The conversation during which Corporal Olayer concluded that Appellant
had been drinking alcohol was recorded by the dash cam of his cruiser and
the audio of that conversation was played at the suppression hearing. The
trial court found that this conversation transpired as follows:
OLAYER: How you doing today, sir?
[APPELLANT]: Pretty good. How are you?
OLAYER: Pretty good. You, you lost, or anything?
[APPELLANT]: Pardon me?
OLAYER: Are you lost?
[APPELLANT]: No. Why?
OLAYER: Just wondered where you were heading.
[APPELLANT]: Right here.
OLAYER: Okay
[APPELLANT]: [inaudible]
OLAYER: Wings?
[APPELLANT]: Yeah.
OLAYER: What kind of wings?
[APPELLANT]: Hot wings.
OLAYER: Okay. They have good wings here?
[APPELLANT]: Yeah
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OLAYER: Okay.
[APPELLANT]: Yeah, I know Jeff Gordon real well.
OLAYER: Who, Jeff Gordon?
[APPELLANT]: Yeah. He owns the place.
OLAYER: Okay. I just noticed you pulled in and everything, and
uh, you were from Butler and everything when you parked there,
and that's like, not your address on your license.
[APPELLANT]: No, I uh, I'm not from Butler. Portersville, well
actually New Castle.
OLAYER: Okay. You took kind of an odd way to get down here,
thought. You walked down that way when you could have just kept
coming on 18.
[APPELLANT]: Well, sometimes this parking lot is full, so I usually
park over there
OLAYER: You, you parked over there?
[APPELLANT]: Yeah, usually I pull right over there.
OLAYER: Okay. How much you have to drink tonight.
[APPELLANT]: Nothing, so far.
OLAYER: You sure, because I smell it on you.
[APPELLANT]: Well, I had a beer like an hour ago.
OLAYER: Okay.
[APPELLANT]: No. I'm not like, blasted.
OLAYER: No, I understand that, but you were driving a car and
your eyes are bloodshot and everything like that, and you kind of
ducked me there.
[APPELLANT]: [Inaudible]
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OLAYER: Well I understand that and everything, so what I'm going
to ask you to do now is go back to your vehicle and run some field
sobriety to make sure.
[APPELLANT]: Okay. . . Did I do something wrong?
OLAYER: What?
[APPELLANT]: Did I do something wrong?
OLAYER: No. I just happened to be walking along, I saw you get
out of that car, and I was walking down the street, and I like to
talk to people and everything like that, and I happened to smell
alcohol about you.
Trial Court Opinion, 11/2/18 at 3-5.
The trial court denied Appellant’s motion to suppress on November 2,
2018 on the ground that the conversation that Corporal Olayer had with
Appellant was a mere encounter that required no reasonable suspicion of any
crime up until Corporal Olayer requested that Appellant submit to field sobriety
tests. Following a nonjury trial, Appellant was convicted on May 24, 2019 of
DUI - high rate of alcohol, and was sentenced on July 31, 2019 to six months’
intermediate punishment. This timely appeal followed.
Appellant presents the following single issue for our review:
Whether the interaction between Defendant and the arresting
State Trooper was conducted in violation of the Fourth and
Fourteenth Amendments to the United States Constitution and
Article 1, §8 of the Pennsylvania Constitution so that the Court
erred in characterizing the interaction between the arresting State
Trooper as a “mere encounter” rather than an “investigative
detention” and thus improperly failed to suppress all evidence
obtained after the illegal detention of Defendant and thereafter
permitted such evidence to be admitted at the Non-Jury Trial.
Appellant’s Brief at 5.
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Our review in an appeal from the denial of a suppression motion is
limited to determining whether the lower court’s factual findings are supported
by the record and whether the legal conclusions drawn from those facts are
correct. Commonwealth v. Parker, 161 A.3d 357, 361 (Pa. Super. 2017).
Where the lower court’s factual findings are supported by the record, this
Court is bound by those findings and may reverse only if the lower court’s
legal conclusions are erroneous. Commonwealth v. Luczki, 212 A.3d 530,
541-42 (Pa. Super. 2019); Parker, 161 A.3d at 362. The lower court’s legal
conclusions, however, are not binding on an appellate court and are subject
to our plenary, de novo review. Commonwealth v. Adams, 205 A.3d 1195,
1199 (Pa. 2019); Parker, 161 A.3d at 362.
The Fourth Amendment to the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution protect individuals from
unreasonable seizures by government officials. Adams, 205 A.3d at 1199;
Parker, 161 A.3d at 362.
Not every encounter between a law enforcement officer and a
citizen constitutes a seizure warranting constitutional protections.
“Only when the officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen may
we conclude that a ‘seizure’ has occurred.”
Adams, 205 A.3d at 1199 (quoting Florida v. Bostick, 501 U.S. 429 (1991)).
A citizen, however, “may not be detained even momentarily without
reasonable, objective grounds for doing so.” Commonwealth v. Cost, 224
A.3d 641, 652 (Pa. 2020) (emphasis in original) (quoting Florida v. Royer,
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460 U.S. 491 (1983)); see also Adams, 205 A.3d at 1201 (“The Fourth
Amendment does not have a time limit; it protects individuals from
unreasonable seizures, no matter how brief”).
There are three levels of interaction between police officers and citizens:
(1) a mere encounter, (2) an investigative detention, and (3) an arrest or
custodial detention. Adams, 205 A.3d at 1199-1200; Commonwealth v.
Young, 162 A.3d 524, 528 (Pa. Super. 2017); Parker, 161 A.3d at 362. An
interaction between a police officer and a private citizen is a mere encounter
where the citizen is under no compulsion to stop or respond to the officer and
is free to ignore the officer and continue on his way. Adams, 205 A.3d at
1199; Young, 162 A.3d at 528. Because the citizen is under no compulsion,
a mere encounter does not constitute a seizure, and need not be supported
by any suspicion of criminal activity. Adams, 205 A.3d at 1199; Young, 162
A.3d at 529.
In contrast, an investigative detention requires that the citizen
temporarily stop and respond to the officer’s requests. Adams, 205 A.3d at
1199-1200; Young, 162 A.3d at 528. An investigative detention therefore
constitutes a seizure and is constitutionally valid only if the officer has
reasonable suspicion that criminal activity is afoot. Adams, 205 A.3d at 1199-
1200; Parker, 161 A.3d at 362. The third category of interaction, arrest or
custodial detention, must be supported by probable cause. Adams, 205 A.3d
at 1200; Parker, 161 A.3d at 362. Whether an interaction between a private
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individual and a police officer is a mere encounter or a seizure is a question of
law. Young, 162 A.3d at 529.
Here the trial court did not find that Corporal Olayer had reasonable
suspicion of a crime at the time that he engaged Appellant in conversation or
that he had reasonable suspicion sufficient to support an investigative
detention during his questioning of Appellant until he asked Appellant whether
he had been drinking and commented that Appellant smelled of alcohol and
had bloodshot eyes. The critical question here therefore is whether the
officer’s questioning of Appellant up to that point was only a mere encounter
from which Appellant was free to walk away.
Where a police officer does nothing more than approach an individual in
a public place and briefly ask him questions, the interaction is ordinarily a
mere encounter that need not be supported by any suspicion of criminal
activity. Young, 162 A.3d at 529. “There is no constitutional provision that
prohibits police officers from approaching a citizen in public to make inquiries
of them.” Id. An interaction between an officer and a citizen is a detention,
rather than a mere encounter, however, where the police conduct would
communicate to a reasonable person that he was not free to ignore the police
inquiry and go about his business. Adams, 205 A.3d at 1200;
Commonwealth v. DeHart, 745 A.2d 633, 637 (Pa. Super. 2000). An
interaction that begins as a mere encounter may become an investigative
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detention if the police conduct becomes too intrusive. Young, 162 A.3d at
529; Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa. Super. 2000).
The mere fact that a citizen ordinarily feels obligated to respond to a
police officer, without more, however, is not sufficient to make an interaction
a seizure. Commonwealth v. Mathis, 173 A.3d 699, 713 (Pa. 2017).
[A]ll interactions with law enforcement may be viewed, to some
degree, as a show of authority to which people usually accede.
However, the free-to-leave test is not to be employed in such a
literal manner so as to require application of Fourth Amendment
exclusionary remedies to all police encounters. … “Implicit in the
introduction of the [officer] and the initial questioning is a show of
authority to which the average person encountered will feel
obliged to stop and respond. Few will feel that they can walk away
or refuse to answer. ... [T]he confrontation is a seizure only if the
officer adds to those inherent pressures by engaging in conduct
significantly beyond that accepted in social intercourse.”
Id. (quoting Wayne R. LaFave, 4 SEARCH AND SEIZURE: A TREATISE ON THE
FOURTH AMENDMENT § 9.4(a) (5th ed. 2016))
Whether a reasonable person would have believed that he was not free
leave, making the interaction an investigative detention rather than a mere
encounter, must be determined from examining the totality of all the facts and
circumstances surrounding the interaction. Mathis, 173 A.3d at 712; Parker,
161 A.3d at 363. Factors to be considered in making this determination
include the number of police officers, whether there is physical contact,
whether there is police direction of the subject’s movements, the demeanor
of the officer, the location and timing of the confrontation; and the content of
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the officer’s statements or questions. Mathis, 173 A.3d at 712; Parker, 161
A.3d at 363; Beasley, 761 A.2d at 624.
Examination of these factors shows that the interaction in this case was
a mere encounter and remained a mere encounter and not a seizure up to the
time when Corporal Olayer asked Appellant to submit to field sobriety tests.
The interaction involved only one officer and there was no physical contact or
display of force beyond the fact that the officer was in uniform. There was
also no evidence that Corporal Olayer positioned himself so as to block
Appellant or did anything that could prevent Appellant from leaving.
Compare Cost, 224 A.3d at 652 (interaction was investigative detention
where officers retained defendant’s identification while they asked him
questions); Adams, 205 A.3d at 1200-01 (interaction was investigative
detention because officer prevented defendant from getting out of his car);
Commonwealth v. Hampton, 204 A.3d 452, 458 (Pa. Super. 2019)
(interaction was investigative detention where officer’s vehicle blocked
defendant from moving his vehicle); Parker, 161 A.3d at 361, 364
(interaction was investigative detention where two officers stopped defendant
by stationing their bicycles in front of him and suggested that defendant was
involved in criminal activity); DeHart, 745 A.2d at 636-38 (interaction was
investigative detention where two officers approached vehicle and positioned
themselves one on each side of the vehicle).
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Corporal Olayer, moreover, only conversed with Appellant and asked
him questions, and did not direct or order Appellant to do anything until after
he smelled alcohol on Appellant. Compare Commonwealth v. Singleton,
169 A.3d 79, 83 (Pa. Super. 2017) (interaction was mere encounter even
though two officers approached defendant late at night where officers only
asked him what was in his bag) with Beasley, 761 A.2d at 625 (mere
encounter became investigative detention when officer directed defendant to
pick up the backpack he had set down and bring it with him).
Because the evidence showed and the trial court found that Corporal
Olayer did nothing more than approach Appellant and ask him questions, this
interaction constituted a mere encounter, not a seizure, and did not violate
Appellant’s rights under the Fourth Amendment or Article 1, Section 8 of the
Pennsylvania Constitution. Accordingly, the trial court did not err in denying
Appellant’s motion to suppress. We therefore affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2020
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