Com. v. Alvarado, O.

J-A02030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
OSCAR ALBERTO VEGA ALVARADO
No. 1692 EDA 2015
Appeal from the Order entered May 7, 2015,
in the Court of Common Pleas of Bucks County,
Criminal Division, at No(s): CP-09-CR-0000730-2015.
BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY RANSOM, J.: FILED APRIL 28, 2017
The Commonwealth appeals from the order entered May 7, 2015,
granting Appellee’s suppression motion.1 We affirm.
In November 2014, Appellee was arrested, and subsequently charged
with driving under the influence pursuant to 75 Pa.C.S. §§ 3802(a)(1) and
3802(c). On March 31, 2015, Appellee filed a pretrial motion, which
included a challenge to the admissibility of statements he made during a
traffic stop. Specifically, Appellee contested the admissibility of his
____________________________________________
1
The Commonwealth has certified that the trial court’s suppression order
will terminate and/or substantially handicap the prosecution of Appellant’s
case. See Pa.R.A.P. 311(d).
*Former Justice specially assigned to the Superior Court.
J-A02030-17
statements made during a second interaction between him and the arresting
officers on the basis that the statements were the product of a custodial
interrogation made without Miranda warnings.2 Appellee also contested the
admissibility of blood alcohol results on the basis that, without the
statements he made at the scene, the Commonwealth was unable to
establish the time of driving.
The trial court held a suppression hearing on May 7, 2015. Trooper
Craig Acord was the only witness. In addition, the Commonwealth played
the trooper’s dash cam recording of the incident. The trial court summarized
its factual findings as follows:
On November 21, 2014, at approximately 11:40 p.m.,
State Trooper [Craig] Acord (“Trooper Acord”), while on
patrol and in full uniform, in a marked patrol vehicle,
observed a disabled vehicle stopped on Interstate 95. The
disabled vehicle, a black Mercedes owned by [Appellee],
was stopped on the right shoulder on Interstate 95 and
had its hazard lights on. Upon seeing the disabled vehicle,
Trooper Acord turned on his overhead lights and stopped
behind the vehicle. It is Trooper Acord’s practice to stop
and offer assistance to disabled vehicles.
When Trooper Acord initially parked his patrol car
behind [Appellee’s], he saw [Appellee] in the process of
changing a tire. Trooper Acord then got out of his patrol
car, approached [Appellee] (“the first interaction”), and
asked him questions assessing the situation and offering
aid. Trooper Acord’s first two questions to [Appellee]
were: “[Y]ou got a flat? You ok?” Trooper Acord then
asked [Appellee] where he was coming from and where he
____________________________________________
2
Arizona v. Miranda, 384 U.S. 436 (1966).
-2-
J-A02030-17
was going. Trooper Acord was very amicable during the
first interaction. Prior to going back to his patrol vehicle,
Trooper Acord told [Appellee] to “go ahead and do what
you gotta do there” and to “have at it my friend.”
Pursuant to normal practice, Trooper Acord asked for
[Appellee’s] information and took his driver’s license while
his partner got the registration from [Appellee’s] vehicle.
It is undisputed and uncontested that the first
interaction between [Appellee] and Trooper Acord was a
mere encounter. However, during the first interaction,
Trooper Acord observed that [Appellee] appeared to be
unsteady, slurred his speech, and had an odor of alcohol
coming from him. These observations indicated to Trooper
Acord, who has made roughly 350 DUI arrests, that
[Appellee] was intoxicated (“hammered”). When Trooper
Acord returned to his patrol car to run [Appellee’s] driver’s
license and registration number, he notified his partner
that [Appellee] was a “drunk driver” and that he was
“hammered.” Trooper Acord uses the term “hammered”
when describing somebody who is “more than a little
drunk.” Trooper Acord then said to his partner that he was
not going to let [Appellee] change his tire because he
might hurt himself. At that time, Trooper Acord
determined that [Appellee] was detained and no longer
free to leave.
Trooper Acord then exited his patrol car and re-
approached [Appellee’s] vehicle a second time (“the
second interaction”). When Trooper Acord approached
[Appellee] for their second interaction, [Appellee] was
kneeling down and changing the front right tire of his
vehicle. When Trooper Acord reached [Appellee’s] vehicle,
he stated, “[Appellee], I want you to step over here and
talk to me real quick.” [Appellee] complied as ordered,
and walked to the back right of his vehicle. [Appellee]
then stood between the two State Troopers and the
concrete barrier lining the shoulder of the highway.
Trooper Acord then proceeded to ask [Appellee] various
questions which he already asked him during the first
interaction. These questions called into doubt the answers
[Appellee] initially provided. For example, one of the first
questions Trooper Acord asked [Appellee] during the
second interaction was “[w]here are you coming from?’
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J-A02030-17
This same question was asked during the first interaction.
However, it was now asked in an inquisitive tone of voice
to communicate to [Appellee] that Trooper Acord severely
doubted the answer [Appellee] had previously given. The
same can be said for the way in which Trooper Acord re-
asked [Appellee] “[h]ow come you’re heading this way if
you’re heading home?
Trooper Acord then ordered [Appellee] to move, for a
second time, between the patrol car and [Appellee’s] car.
Moments after commanding [Appellee] to step away from
his front right tire, and asking various questions, Trooper
Acord demanded [Appellee] “[s]tand over here and talk to
me a bit more.” This time, Trooper Acord made [Appellee]
stand directly between the patrol car and [Appellee’s] car.
In doing so, Trooper Acord directed [Appellee] to “stand on
that line for me and face me.” Trooper Acord then asked
[Appellee] “you don’t have any weapon do you?” As
Trooper Acord asked this question, he began to look into
[Appellee’s] pockets, asked what he was carrying and
performed a brief pat down.
Trooper Acord then asked [Appellee] when his last drink
was. [Appellee] responded that his last drink was twenty
minutes prior to seeing Trooper Acord. Trooper Acord then
asked [Appellee] if he stopped after work and where he
stopped. [Appellee] answered in the affirmative and
stated that he stopped at a bar called “The Press.”
Trooper Acord then proceeded to administer a field
sobriety test known as the horizontal gaze nystagmus.
The test was administered to confirm that [Appellee] was
intoxicated. The horizontal gaze nystagmus test did in fact
indicate that [Appellee] was intoxicated. Next, Trooper
Acord had [Appellee] take a portable breath test. The
portable breath test measured [Appellee’s] blood alcohol
level at .19, more than double the legal limit. Trooper
Acord then handcuffed [Appellee] and placed him in the
back of his patrol car.
Trooper Acord testified at the suppression hearing that
his plan in re-approaching [Appellee] was to build his case
for impairment. Trooper Acord hoped to do so by getting
[Appellee] to talk more so that he could get [Appellee’s]
slurred speech on his audio recorder. However, Trooper
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J-A02030-17
Acord did not provide [Appellee] with his Miranda
warnings. Further, at no point did Trooper Acord or his
partner return [Appellee’s] driver’s license to him.
Earlier in the evening, another State Trooper, Trooper
Hand, observed [Appellee] pull over to the side of the
highway. No estimate of time between [Trooper] Hand’s
observation and when Trooper Acord arrived on the scene
was given. [Appellee] was not in the driver’s seat and the
engine was not running. Trooper Acord did not touch any
portion of the vehicle to indicate whether or not it was
warm. At approximately 12:30 a.m. blood was drawn at
St. Mary’s Hospital.
Trial Court Opinion, 10/7/15, at 1-5 (footnotes omitted).
After hearing argument from the parties, the trial court granted
Appellee motion, thereby suppressing statements made during the second
interaction, and, because the Commonwealth proof of the time Appellee was
driving was dependent on one of these statements, it also ruled the blood
alcohol results inadmissible as it relates to the Section 3802(c) charge. This
timely appeal by the Commonwealth follows. Both the Commonwealth and
the trial court have complied with Pa.R.A.P. 1925.
The Commonwealth raises the following issues:
A. Did [Trooper Acord] have reasonable suspicion to
believe that Appellee, who exhibited slurred speech and
red, glassy eyes, smelled of alcohol, was unsteady on
his feet, and had trouble responding to the [trooper’s]
questions, had been operating his vehicle while under
the influence of alcohol, such that an investigative
detention of Appellee was lawful for purposing [sic] of
further investigation [of] the suspected criminal
activity?
B. Did the suppression court err in concluding that
Appellee had been subject to custodial interrogation
which required Miranda warnings where the [trooper]
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J-A02030-17
testified that he formed the opinion during the traffic
stop that Appellee was intoxicated and therefore not
free to leave but where the [trooper] never
communicated that to Appellee, and where, under an
objective standard, the totality of the circumstances did
not reasonably suggest to Appellee that he was under
arrest or the [functional] equivalent thereof at the time
he made statement(s) that were the subject of
suppression?
C. Did the suppression court err in suppressing the
laboratory results concerning Appellee’s blood alcohol
content based on a violation of the two-hour rule where
it held that there was circumstantial evidence that
Appellee had been driving within two hours of his blood
being drawn based on Appellee’s statements in
conjunction with other circumstantial evidence, but that
Appellee’s statement was inadmissible and therefore the
blood results were inadmissible?
D. Did the suppression court err in suppressing the
laboratory results concerning Appellee’s blood alcohol
content based on a violation of the two-hour rule where
the blood alcohol results were otherwise admissible as
evidence on count one of the information, 75 Pa.C.S. §
3802(a)(1), irrespective of whether Appellee’s blood
was drawn within two hours of him operating a vehicle?
Commonwealth’s Brief at 4-5 (excess capitalization omitted).
This Court has summarized:
The applicable standard of review in a Commonwealth
appeal from an order of suppression is well-settled. We
must first determine whether the factual findings are
supported by the record, and then determine whether the
inferences and legal conclusions drawn from those findings
are reasonable. We may 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. When the evidence
supports the suppression court’s findings of fact, this Court
may reverse only when the legal conclusions drawn from
those facts are erroneous.
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J-A02030-17
Commonwealth v. Lyles, 54 A.3d 76 (Pa. Super. 2012) (citations
omitted), affirmed, 97 A.3d 298 (Pa. 2014).
After careful review of the suppression hearing transcript, as well as
our viewing of the dash cam video, we conclude that the Honorable Robert J.
Mellon has prepared a thorough and well-reasoned opinion that discusses
the different types of police interaction with persons subject to a traffic stop
and correctly applies the requisite quantum of evidence the police must
possess in order to validate their conduct. Applying the applicable criteria to
his factual findings, we conclude that Judge Mellon has correctly disposed of
the Commonwealth’s first three claims. We therefore adopt Judge Mellon’s
October 7, 2015 opinion as our own in disposing of the Commonwealth’s first
three issues enumerated above.
In reaching our conclusion, we reiterate that standards applicable to
police conduct may change during the relatively short duration of a traffic
stop. See Commonwealth v. Cauley, 10 A.3d 321, 326 (Pa. Super. 2010)
(explaining that “[b]ecause the level of intrusion may change during the
course of the police encounter, the record must be carefully scrutinized for
any evidence of such changes”). Given the particular facts presented, we
emphasize the following rationale provided by Judge Mellon:
The foregoing facts clearly indicate that no further
investigation was necessary to convince Trooper Acord,
who has made roughly 350 DUI arrests, that [Appellee]
was intoxicated and an arrest was going to be made. For
instance, Trooper Acord’s use of the word “hammered,”
and his corresponding description of the term, showed that
-7-
J-A02030-17
there was no doubt in his mind that [Appellee] was
intoxicated. Trooper Acord testified at the suppression
hearing that his plan in re-approaching [Appellee] was to
build his case for impairment. His only efforts in doing so
were to ask incriminating questions and subject [Appellee]
to an interrogation. These circumstances do not fit the
purpose of the investigative detention because once the
determination to arrest was made, [Appellee] was in
custody and entitled to his Miranda warnings prior to
being interrogated.
Trial Court Opinion, 10/7/15, at 24 (footnote omitted). See, e.g.,
Commonwealth v. Turner, 772 A.2d 970, 975 (Pa. Super. 1999) (en banc)
(holding that if a motorist who has been detained pursuant to a traffic stop
thereafter is subject to treatment that renders him in custody for practical
purposes, he or she is entitled to full panoply of protections prescribed by
Miranda).
In addressing the Commonwealth’s fourth issue, we note that Judge
Mellon explicitly suppressed the blood alcohol results only as to the Section
3802(c) charge. See Trial Court Opinion, 10/7/15, at 26.
In sum, because a review of the totality of the circumstances supports
the conclusion that Appellee was subject to custodial interrogation during the
traffic stop without the benefit of Miranda warnings, we affirm the order
granting Appellee’s suppression motion.
Order affirmed.
-8-
J-A02030-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2017
-9-
Circulated 04/06/2017 10:47 AM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CIVIL ACTION
COMMONWEALTH OF PENNSYLVANIA :
vs.
CP-09-CR-000730-2015
OSCAR VEGA ALVARADO
OPINION
The Commonwealth of Pennsylvania (the "Commonwealth") appeals from the decision of
this Court's Order entered on May 7, 2015, granting Oscar Vega Alvarado's ("Alvarado" or "Mr.
Vega") Motion to Suppress statements he made after he was subject to a custodial interrogation
but not provided with his Miranda warnings. It is uncontested that the initial interaction between
Trooper Acord and Alvarado was a "mere encounter." However, the primary issue before this
Court is whether the second interaction between Trooper Acord and Alvarado was a custodial
interrogation which required Miranda warnings.
FACTUAL AND PROCEDURAL BACKGROUND
On, November 21, 2014 at approximately 11 :40 p.m., State Trooper Craig Acord ("Trooper
Acord"), while on patrol and in full uniform, in a marked patrol vehicle, observed a disabled
vehicle stopped on Interstate 95.1 The disabled vehicle, a black Mercedes owned by Alvarado, was
stopped on the right shoulder on Interstate 95 and had its hazard lights on.2 Upon seeing the
disabled vehicle, Trooper Acord turned on his overhead lights and stopped behind the vehicle.' It
is Trooper Acord's practice to stop and offer assistance to disabled ve~ic~t:~~\:~;·);_\8
... ·.·,·,;1,,.H:-i:l
~· • · 1 ; ;v·, v ~.; :.i·l~
(~J . :j:!3fi
4
._ ••
I • T ,,-· ,
Notes of Testimony (hereinafter "N.T.") 517/15, I 5:l-3. . I . ,
2 '';'. ' ..............
N.T. 511/IS, 21-23.
1
N.T. 511115, 16:6-13.
4
N.T.5n11s;21-23. Trooper Acord testified at the suppression hearing that it is normal practice for Trooper Acord
and other State Troopers to offer aid to drivers of disabled vehicles. Trooper Acord testified that if the driver of the
When Trooper Acord initially parked his patrol car behind Alvarado's, he saw Alvarado in
the process of changing a tire.5 Trooper Acord then got out of his patrol car, approached Alvarado
C'lhe first interaction"), and asked him questions assessing the situation and offering aid.6 Trooper
Acord's first two questions to Alvarado were: "[y]ou got a flat? You ok?"7 Trooper Acord then
asked Alvarado where he was coming from and where he was going.8 trooper Acord was very
amicable during the first interaction: Prior to going back to his patrol vehicle, Trooper Acord told
Alvarado to "go ahead and do what you gotta do there" and to "have at it my friend,"? Pursuant to
normal practice, Trooper Acord asked for Alvarado's information and took his driver's license
while his partner got the registration from Alvarado's vehicle.!?
It is undisputed and uncontested that that the first interaction between Alvarado and
Trooper Acord was a mere encounter. However, during the first .interactlon, Trooper Acord
observed that Alvarado appeared to be unsteady, slurred his speech, and had an odor of alcohol
corning from him. 11 These observations indicated to Trooper Acord, who has made roughly 350
DUI arrests, that Alvarado was intoxicated (''hammered").12 When Trooper Acord returned to his
patrol car to run Alvarado's driver's license and registration number, he notified his partner that
Alvarado was a "drunk driver"!' and that he was "hammered,"!" Trooper Acord uses the term
"hammered" when describing somebody who is "more than a little drwik.''15 Trooper Acord then
disabled vehicle does need assistance, the State Trooper will call a tow truck, otherwise the Trooper will set up
flares behind the driver's vehicle to protect them from traffic.
5
N.T. snn 5, 16:22-25.
6 Video.
7 Video.
• Video.
9Video.
10N.T.
517115, 17-18.
11
N.T. 511115, 18:10·17.
12
N.T. 511115, 18~!9.
11
Video.
1• N.T. S/7/1 S, 20: 1-10.
15
N.T. 51111 .5, 30:7-9.
2
said to his partner that he was not going to let Alvarado change his tire because he might hurt
himself.16 At that time, Trooper Acord determined that Alvarado was detained and no longer free
to leave.'?
Trooper Acord then exited his patrol car and re-approached Alvarado's vehicle a second
time (''the second interaction").18 When Trooper Acord approached Alvarado fot their second
interaction, Alvarado was kneeling down and changing the front right tire of his vehicle.19 When
Trooper Acord reached Alvarado's vehicle, he stated, "Mr. Vega, I want you to step over here and
talk to me real quick."20 Alvarado complied as ordered, and walked to the back right of his
vehicle.21 Alvarado then stood between the two State Troopers and the concrete barrier lining the
shoulder of the highway .22
Trooper Acord then proceeded to ask Alvarado various questions which he already asked
23
him during the first interaction. These questions called into doubt the answers Alvarado initially
provided. For example, one of the first questions Trooper Acord asked Alvarado during the second
interaction was "[ w]here are you coming from?"24 This same question was asked during the first
interaction.25 However, it was now asked in an inquisitive tone of voice to communicate to
Alvarado that Trooper Acord severely doubted the answer Alvarado had previously given.26 The
16 N.T. 517115, 20: 14-18.
17
N.T. 517115, 32:4-14.
11N.T.
5/7115, 20:18-19.
19
Video.
zo Video.
21
Video
22 Video.
23Video.
1'
Video.
uvideo.
26 Video.
3
same can be said for the way in which Trooper Acord re-asked Alvarado "[h]ow come you 're
heading this way if you 're heading homer27
trooper Acord then ordered Alvarado to move, for a second time, between the patrol car
and Alvarado's car.28 Moments after commanding Alvarado to step away from his front right tire,
and asking Alvarado various questions, trooper Acord demanded Alvarado ''[sJtand over here and
talk to me a Jittle bitniore."29 This time, Trooper Acord made Alvarado stand directly between the
patrol car and Alvarado's car.30 In doing so, Trooper Acord directed Alvarado to "stand on that
line for me and face me."31 Trooper Acord then asked Alvarado "you don't have any weapon do
you?' As Trooper Acord asked this question, he began to look into Alvarado's pockets, asked what
he was carrying, and performed a brief pat· down. 32
Trooper Acord then asked Alvarado when his last drink was.33 Alvarado responded that his
last drink was twenty minutes prior to seeing trooper Acord. 34 Trooper Acord then asked Alvarado
ifhe stopped after work and where he stopped.35 Alvarado answered in the affirmative and stated
that he stopped at a bar called "The Press."36
TrooperAcord then proceeded to administer a field sobriety test known as the horizontal
gaze nystagmus.37 The test was administered to confirm that Alvarado was mtoxicated." The
27
Video. The patrol video in this case indicates that Alvarado told Trooper Acord he was going home. However,
after viewingAlvarado's address on his driver's license, Trooper Acord questioned Alvarado why he was stopped at
a certain point on the highway if he lived at the address listed on his driver's license? Mainly, Trooper Acord
believed that Alvarado missed his exit, and questioned him to that effect.
21Video.
29 Video.
10Video.
31
Video.
J2 Video.
33
N.T. 511115, 23-24.
:u N.T. 5/7115, 24:1~3.
H N.t. SntlS,34-35.
u N.T. 517115, 24: 7-10.
j7N.T. S/7/15, 21-22.
31N.T.
517115, 21~22.
4
horizontal gaze nystagmus test did in fact indicate that Alvarado was intoxicated.P'Next, Trooper
Acord had Alvarado take a portable breath test.40 The portable breath test measured Alvarado's I
blood alcohol level at .19, more than double the legal limit." Trooper Acord then handcuffed
Alvarado and placed him in the back of his patrol car.42
Trooper Acord testified at the suppression hearing that his plan in re-approaching Alvarado
was to build his case for impairrnent.43 Trooper Acord hoped to do so by getting Alvarado to talk
more so that he could get Alvarado's slurred speech on his audio recorder.f However, Trooper
Acord did not provide Alvarado with his Miranda wamings.45 Further, at no point did Trooper
Acord or his partner return Alvarado's driver's license to him.46
Earlier in the evening another State Trooper, Trooper Hand, observed Alvarado pull over
to the side of the highway.47 No estimate of the time between Tooper Hand's observation and when
Trooper Acord arrived on the scene was given. Alvarado was not in the driver's seat and the engine
was not running. 48 Trooper Acord did not touch any portion of the vehicle to indicate whether or
not it was warm.49 At approximately 12:30 a.m. blood was drawn atSt. Mary's Hospital."
Alvarado is charged on Criminal Information No. 730-2015 with Driving Under the
Influence, 75 Pa. C.S. §3802(a)(I) & (c).
'' N.T. snns, 22~23.
40
N.T. snn 5, 23:6~9.
41
N.T. snns, 23:6-9.
42 Video. .
43 N.T. 517/15, 20-21.
"Id.
41
N.T. 517115, 52:1-6.
46
Video.
47
N,T. 5/7/15, 44-48.
'1 N.T. snns, 49:19-21.
49
N.T. 5/7/15, 49:21-25.
'°N.T. 517/15, 27:12-19.
5
On March 31, 20 J 5, Alvarado filed a pretrial motion, which included his challenge to the
admissibility of his statements made at the scene of the traffic stop. Specifically, Alvarado
contested the admissibility of his statements made during the second interaction on the basis that
they were a product of a custodial interrogation and made without Mimnda warnings. Alvarado
similarly contested the admissibility of the Blood Alcohol Results on the basis that without the
statements Alvarado made on scene, the Commonwealth was unable to establish the time of
driving.
During a suppression hearing on May 7, 2015, the Court Granted Alvarado's Motion to
Suppress and suppressed statements made at the scene of the vehicle stop and therefore ruled that
the Blood Alcohol Results were also inadmissible."
On June 5, 2015, the Commonwealth filed a Notice of Appeal with the Superior Court.
This Opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure l 925(a).52
StATEMENT OF MATTERS COMPLAINED OF ON APPEAL
Pursuant to Pennsylvania Rule of Appellate Procedure ! 925(b), the Commonwealth filed
a Statement of Errors Complained of on Appeal on June 30, 2015. In its appeal, the
Commonwealth complained of four errors. This Court consolidates these four complained of errors
into following two issues:
I. Was Alvarado deprived of his Constitutional rights when Trooper Acord did not
provide him Miranda warnings before· or during the second time Trooper Acord
approached Alvarado and his vehicle such that any statement made by Alvarado during
this second interaction should be suppressed?
'1 N.T. 517115, 73-75.
11
"Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues which the panics plan to
raise on appeal. Rule 1925 is thus a crucial component of the appellate process." Com. v. Seibert, 799 A.2d 54, 62
(Pa. Super. 2002).
6
·l
l
:.i
II
.:J 2. If Alvarado's Constitutional rights were violated because Trooper Acord failed to
provide him Miranda warnings before or during their second interaction, should the
blood alcohol results, taken at Saint Mary's Hospital, be suppressed as a product of an
unJawful detainment, violation of Miranda warnings, and in violation of the two hour
rule?
DISCUSSION
· This Court will discuss the aforementioned issues in tum. As previously stated, it is
uncontested and undisputed that the first interaction between Alvarado and Trooper Acord was a
mere encounter. Therefore, this Court needs only to analyze whether Alvarado's Constitutional
rights were violated during the second interaction.·.
The first Section of this Opinion will begin by discussing the three types of interactions
between law enforcement and citizens and the corresponding legal standards. This Opinion will
then illustrate why the second interaction rose to the level of a custodial interrogation.
Accordingly, this Opinion will show that Alvarado was entitledto his Miranda warnings during
the second interaction. Because Alvarado was not given his Miranda warnings, any statement made
during the second encounter will be suppressed.
In the second Section, th.is Opinion will discuss why the blood alcohol results taken at Saint
Mary's Hospital were the product of a violation-of Alvarado's Constitutional rights. Consequently,
the Blood Alcohol Results should also be suppressed.
I. Trooper Acord's · Second. Interaction with Alvarado Constituted a Custodial
Interrogation Such That Alvarado Should Have Been Given Mitanda Warnings
and, Because Of Trooper Acord's Failure To Provide Such Warnings, Alavarado,s
Statements During the Second Interaction Are Suppressed.
The Fourth Amendmentof the United States Constitution provides that it is "[tjhe right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
7.
and seizures ... "53 Similarly, the Pennsylvania Constitution guarantees that the people of'the
Commonwealth "shall be secure in their persons, houses, papers and possessions from
unreasonable searches and seizures ... "54 "The Fourth Amendment protects against unreasonable.
searches and seizures, including those entailing only a brief detention. "55 Courts have divided
interactions between law enforcement and citizens into three categories. These categories provide
varying. levels of justification depending upon the nature of the interaction and whether
.
or not the
citizen is detained.56
The first of these is a "mere encounter" (or request for information)
which need not be supported by any level of suspicion, but carries
no official compulsion to stop or to respond. The second, an
"investigative detention" must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a period of detention,
but does not involve such coercive conditions as to constitute the
functional equivalent ofan arrest. Finally, an arrest or "custodial
detenrfen" must be supported by probable cause."
However, the type of encounter can change during the course of the·interaction. 58
A. Mere Encounter
A law enforcement agent may engage in a mere encounter without any suspicion of
criminal activity, and the citizen has no obligation to stop or respond.59 "A mere encounter is
characterized by limited police presence and police conduct and questions that are not suggestive
of coercion. It is only when such police presence becomes too intrusive, the interaction must be
'1 U.S. Const. amend IV.
54
Pa. Const. an. I,§ 8.
,, Com, v, Strickler, 757 A.id 884, 887 (Pa. 2000).
~ Com v. DeHart, 145 A.2d 633, 636 (Pa. Super. 2000).
~7 Com. v. Fleet. 114 A.Jd 840, 845 (Pa. Super. 2015).
n Com. v. Blair. 860 A.2d 567, 512 (Pa. Super. 2004)(holding that "[b]ecause the level of intrusion into a person's
liberty may change during the course of the encounter, [courts] must carefully scrutinize the record for any evidence
of such changes.").
"Coin v. Boswell, 721 A.2d 336, 340 (Pa. 1998).
8
deemed an investigative detention or seizuce."60 "The hallmark of [a mere encounter] is that it
carries no official compulsion to stop of respond."61
Police officers lending aid to citizens has been classified as a mere encounter. "[The
Superior Court of Pennsylvania] has held that police officers have a duty to render aid and
assistance to those they believe are in need of help.'>62 For example, in Commonwealth v. Kendall,
the court ruled that there was just a mere encounter when a police officer pulled off a road, behind
a vehicle, and wasjust trying to determine whether a motorist needed aid.63
Similarly, in Commonwealth v. Collins. a State Trooper approached a vehicle parked after
dark, at a scenic location that was commonly used in daylight, to check on the safety ofthe
rnotorists.t' The trooper parked twenty feet away from the rear of the vehicle, observed no outward
sign of distress from the vehicle or its occupants, did not observe anything that would lead him to
believe illegal activity was occurring, and the occupants of the vehicle were not scrambling around
as if they were trying to get away because the trooper was approaching.65 However, when the
trooper approached the vehicle, he smelled marijuana and saw a bong in plain view.66 Thereafter,
an occupant of the vehicle blurted out that the occupants had been smoking marijuana and that he
owned the bong.67 ·
The defendant was charged with possession of drug paraphernalia and moved to suppress
the drug paraphernalia (i.e. the bong).68 Ultimately, the court denied the defendant's Motion to
Suppress and held that the initial interaction between the State Trooper and the passenger in the
Com. v. Hill, 874 A.2d 1214, 1220-21 (Pa. Super. 2005Xcitations ominedXemphasis in original).
Ii()
61
DeHart. 745 A.2d at 636.
62
Corn v. Kendall. 976 A.2d 503, 505 (Pa. Super. 2009).
63
Kendall 976 A.2d at SOS.
&4 Com. v. Collins, 950 A.2d 1041, 1044 (Pa. Super. 2008).
65
Collins, 950 A.2d at 1045-46.
66
Id.67
.l.!!. at 1045.
6i Id.9
vehicle was a mere encounter that did not need to be supported by any level of suspicion.69 The
court reasoned that the State Trooper did not act in a coercive manner, did not speak forcefully to
the defendant, and that a reasonable person in the defendant's position would have interpreted the
trooper's actions "as an act of official assistance and not an investigative detention.';70
However, as previously stated, the conduct of the law enforcement agent can escalate the
type of interaction. ''lfthe police action becomes too intrusive, a.mere encounter may escalate into
an investigatory stop or a seizure.'?"
B. Investigative Detention
In contrast to a mere encounter, an investigative detention "carries an official compulsion
to stop and respond, hut th« detention is temporary. unless it results in the formation of probable
cause for arrest, and does not possess the coercive conditions consistent with a formal arrest."72
However, because the investigative detention has the elements of official compulsion, it requires
"reasonable suspicion" of unlawful activity." The Pennsylvania Supreme Court enunciated the
test to determine whether individuals interacting with police officers have been subject to an
"investigative detention.''74 "The test is whether, considering all the circumstances surrounding the
encounter, the police conduct would communicate to a reasonable person that the person was not
free to decline the officers' requestor otherwise terminate the encounter."75
The purpose of an investigative detention is to provide law enforcement an opportunity to
conduct further investigation into suspected criminal activity. For example, in Commonwealth V;.
69
Id. at I 04 7-:-48.
70
Id. at 1047.
71
Boswell. 721 A.2d 336, 340 (Pa. 1998); see also Blair. 860 A.2d 567, 572 (Pa. Super. 2004)(rtding that "[bjecause
the level of intrusion into a person's liberfy may change during the course of the encounter, we must carefully
scrutinize the record for any evidence of such changes.").
72DeHan, 745 A.2d 633, 636 (Pa. Super. 2000)(emphasis added).
73 Id.74
~m. v. Sierra, 723 A.2d 650 (Pa. 1999).
" DeHart, 745 A.2d 633, 636 (Pa. Super. 2000)(citing film.!!,. 723 A.2d 650 (Pa. 1999)).
IO
DeHart. the court analyzed when interactions escalate into an investigative detention.76 The
applicable facts for DeHart are as follows: two State Troopers, were on patrol in two marked patrol
vehicles when they received a radio report that there was a "suspicious vehicle" that might be a
blue Camaro or Trans Am.77 The Troopers then briefly followed a Trans Am that was driving
slowly. 78 The Trooper later found the Trans Am parked in the front of a house with the engine still
running.79
The Troopers pulled their car up next to and on the left hand side of the Trans Am.80 the
Trooper sitting in the passenger seat then rolled his window down; this prompted the driver of the
Trans Am to do the same.81 The Trooper then asked the driver of the Trans Am "what's going on
here?"82 The driver of the Trans Am responded in a soft-spoken manner and avoided eye contact
with the Trooper." This aroused suspicions for the questioning Trooper who said to his partner,
"sornething's not right here, ... I'm going to get out of the car and see what's going on here."84
The Troopers proceeded to exit their patrol car. One Trooper went to speak with the driver
of the Trans Am while the other Trooper spoke with the passenger.85 After conversing with the
driver of the Trans Am, the Trooper smelled alcohol on his breath and believed he might not be
twenty-one years of age.86 The driver provided the Trooper with his driver's license which
76
DeHart, 745 A.2d 633, 63S (Pa. Super. 2000).
77 Id
71~
79
Id.IO Id.II Id.IZ Jd.
a; Id.~ Id."l!l
86
Id.11
confirmed he was under twenty-one years of age. 87 The Trooper then directed the driver out of his
vehicle.88
Meanwhile, the other Trooper also detected alcohol on the breath of the passenget.89 The
Trooper then asked the passenger to exit the vehicle and told he was going to be transported to
Evangelical Hospitai.90 The Trooperalsoperformed a pat-down search on the passenger." The
pat-down yielded a marijuana pipe and a bag of marijuana.92 Both the passenger and the driver of
the Trans Am were arrested and taken to the hospital for blood alcohol tests.93 Charges were filed
against both parties and both parties moved to suppress all of the evidence resulting from the police
encounter. 94
The court held that the Troopers pulling up to the Trans Am and making cursory inquiries
qualified as a mere encoW1ter.9s The court justified this finding on the fact that the Troopers just
Wanted to find out what was going on.96 However, the court ruled that when the Troopers exited
the vehicle and approached the Trans Arn, they escalated "the encounter to afford greater
investigation, which, of course, is consistent with the purpose of an investigative detention.?"
Accordingly, the court analyzed whether the Troopers had the requisite reasonable suspicion of
criminal activity to support the investigative detention."
17 Id.II Id.19~
'lO Id.91~
91 Id.,1 Id.94 Id.95 Id. at 638.
96 Id.97 Id. (emphasis added).
93 Id. at 637-38.
12
C. Custodial Detention and Custodial Interrogation
The final kind of interaction is a custodial detention. "In further 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."99 "The key
distinction between an investigative detention and custodial detention is thatan investigative
detention lacks the coercive conditions that would make it the functional equivalent of an
arrest."100 However, the facts and circumstances of each case are generally controlling in
determining whether or not a detention is investigatory or custodial.
In determining whether or not a person was entitled to Miranda warnings, courts must first
determine if that person was subject to a custodial interrogation.'?' The standard Pennsylvania
courts use in determining whether a person's interaction with law enforcement is "custodial," or
whether law enforcement initiated a "custodial interrogation," is an objective one based on a
totality of the circumstances with due consideration given to the reasonable impression conveyed
10 the person interrogated_l02 Custodial interrogation, which ultimately require Miranda warnings,
is defined as "questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom ofaciiori in any significant way ."103 The applicable
test for determining whether a particular situation involves a custodial interrogation is as follows:
The test for determining whether a suspect is being subjected
to custodial interrogation so as to necessitate Miranda warnings is
whether he is physically deprived of his freedom in any significant
way or is placed in a situation in which he reasonably believes that
99
Id. (citations omitted). . .
•00 Walkden v. Com., Dept, ofTransp .• Bureau of Driver Licensing, 103 A.3d 432, 439 (Pa. Cornmw, Ct. 2014).
101
Coin. v. Johnson S41 A.2d 332, 336 (Pa. Super. 1988)(holding that "[a) person must be informed of his or her
Miranda rights prior to custodial interrogation by police.").
102
Coni v. Gwynn. 723 A.2d 143, 148 (Pa. 1998). .
io) Johnson, 541 A.2d at 336 (qUoting Miranda v. Arizon~ 384 U.S. 436, 444 (1966)).
13
his freedom of action or movement is restricted by
such interrogation.P'
Simply put, determining whether a situation is a "custodial interrogation" is a two-part
test First, the court must determine if the detention is "custodial." Then the court must determine
whether the conduct by law enforcement qualifies as "interrogation."
Law enforcement "detentions in Pennsylvania become custodial when, under the totality
of the circumstances, the conditions and/or duration of the detention become so coercive as to
constitute the functional equivalent of artest."105 The applicable Standard for determining
whether a detention is custodial
.
is an objective one based on the totality of the. circumstances. 106
The terms "arrest and "custodial detention" have been used interchangeably.l'" An arrest is
defined as:
[a]ny act that indicates an intention to take the person into custody
and subjects him to the actual control and will of the person making
the arrest. ... The test is an objective one, i.e., viewed in the light of
the reasonable impression conveyed to the person subjected to the
seizure rather than the strictly subjective view of the officers or the
persons being seized. 108
"[A] reviewing court is to consider the particular facts of each case in order to determine whether
109
a detention is custodial."
"Interrogation" is police conduct "calculated to, expected to, or likely to evoke
admission,"!'? "Interrogation occurs where the police should know that their words or actions are
•04 Com v, Busch, 71 J A.2d 97, 100 (Pa. Super. 1998Xcirations omitted).
ios Com v. Mannion. 725 A.2d 196, 200 (Pa. Super. 1999)(emphasis added).
106
Walkden, 103 A.3d 432, 439 (Pa. Commw. Ct. 2014).
107
.E!"1, 114 A.3d at 845.
1°'
Com v. Butler. 729 A.2d 1134, 1137 (Pa. Super. 1999).
109 Id.110 I.446 U.S. 291, 301-302 (1980).
•1> Com. v. Gaul, 912 A.2d 252, 255 (Pa. 2006).
114
In Interest of MeUon, 476A.2d I I, 13 (Pa. Super. 1984)(citations omitted).
15
why the Commonwealth's argument, that the second interaction was an investigatory detention,
fails.
In the second Part of this Section, this Court discuss the admissibility of the Blood Alcohol
Results taken at Saint Mary's Hospital. Ultimately the second Pan of this Section will state that
the results are suppressed because they were a product of an unlawful detainment, in violation of
Alvarado's Miranda rights, and in violation of the two hour rule.
l. The Second Interaction Between Trooper Acord and Alvarado Was a Custodial
Interrogation Which. Required Miranda Warnings and, Because Trooper Acord
Failed to .· Provide Miranda. Warnings, Any of Alvarado's Statements Made
DuringJhe Second Interaction Are Suppressed.
Trooper Acord made the decision to arrest Alvarado prior to initiating the second
interaction.115 Trooper Acord expressed to Alvarado his decision to arrest him by the manner in
which Trooper Acord conducted himself, the tenor of his questions and tone of his voice, and
manner in which he asked 'the questions during the second interaction. Knowing that Alvarado was ·
not free to leave, and portraying this to Alvarado, Trooper Acord proceeded to ask Alvarado
incriminating questions. Accordingly, Alvarado was entitled to his Miranda warnings because he
was (a) in custody and (b)asked incriminating questions.Because he was not provided his Miranda
warnings, any statements made during the second interaction are suppressed.
a. Alvarado Was in Custody During the Second Interaction.
In analyzing the particular facts of this case, it is clear that the second interaction was a
custodial detention because Alvarado was "taken into custody [and] otherwise deprived of his
freedom of action in (a] significant way."116 In applying the objective standard for determining
m N.T. S/1/IS, 32:4·14.
u6 Johnson 541 A.2d at 336 (quoting Miranda, 384 U.S ai 444; see !!.lsQ Mannion. 725 A.2d 196, 200 (Pa. Super.
I 999)(noting that "a reviewing court is to consider the particular facts of each case in order to determine whether a
detention is custodial.").
16
whether Alvarado's second interaction with Trooper Acord was "custodial," based on the totality
of the circumstances, it is clear that the reasonable impression conveyed to Alvarado was that he
was under arrest. 117
Trooper Acord knew that Alvarado was detained during the second interaction and
communiceted this to Alvarado. At the suppression hearing, regarding the second interaction,
Trooper Acord testified as follows:
Q: Okay. So you've have this minor encounter with [Alvarado]. You've asked him
some pretty innocuous questions. You get back in your car; and that moment while
you' re in your patrol car you say to your fellow officer he's hammered, right?
A: Yes118
Q: In your opinion, as of that moment if Mr. Alvarado wanted to walk away and
just keep walking, would you have stopped him?
A: Yes.119
Q: If Mr. Alvarado had the ability to get back in his car and drive away, would you
have prevented him from doing that?
A: Yes.!20
Q: So at that moment, after you determined that he was hammered, Mr. Alvarado
was no longer free to leave, correct?
A: That's correct ... He was not free to leave.121
Q: [l You already formed the opinion when you got out ofyourpatrol car the second
time that that man was not free to leave, either on foot or by vehicle, correct?
A: That's correct.122 .
Q: So, in essence, he was detained, correct?
A: When I re-approached him?
Q:Yes.
A: And I began to question him again?
Q:Yes.
117
~ ~ 723 A.2d at 148 (ruling that the standard Pennsylvania courts use in determining whether a person's
interaction with law enforcement is "custodial," or whether law enforcement initiated a "custodial interrogation," is
an objective one based on a totality of the circumstances with due consideration given to the reasonable impression
conveyed to the person interrogated}.
111 N.T. 5/7/15, 30: 12-17
119
N.T. 5n115, 30: 1s-21.
120
N.T. sru». 30: 22-25
121
N.T. snns, 31: 1-13.
122
N.T. 517/15, 31·32.
17
A: At that point he was detained) yes.
Q: He was detained. Not free to leave.
A: He was not free to leave no.
Q: And if he tried to walk away you would have stopped him?
A: Absolutely. 123
From his testimony, it is clear that Trooper Acord knew that Alvarado was detained during his
second interaction with Trooper Acord.
Trooper Acord expressed to Alvarado his decision to arrest him by the mannerin which
Trooper Acord conducted himself, the tenor of his questions and tone of his voice, and manner in
which he asked the questions during the second interaction. The evidence shows that Alvarado
knew he was detained front the actions of Trooper Acord. "[Ujnder the totality of the
circumstances, the conditions ... of the detention [during the second interaction became] so
coercive as to constitute the functional equivalent of arrest."124
Trooper Acord expressed to Alvarado his decision that Alvarado was under arrest by the
way he conducted hiinself.125 For example, when Trooper Acord approached Alvarado for their
second interaction, Alvarado was kneeling down and changing his front right tire. t26 As he
approached Alvarado's vehicle, the first thing that Trooper Acord said was. "Mr. Vega, lwant you
to step over here and talk to me real quick."127 In essence, Trooper Acord commanded Alvarado
to stop changing his tire, stand behind the back rear of his vehicle, and between two State Troopers
and the concrete barrier on the shoulder of the highway.t28 Trooper Acord then proceeded to ask
123
N.T. Sn/IS; 32: 4-14.
124
Mannion. 72S A.2d at 200 (emphasis added).
l2S See~ 723 A.2d at 148 (holding that the standard Pennsylvania courts use in determining whethera
person's interaction with law enforcement is "custodial," or whether law enforcement initiated a "custodial
interrogation," is an objective one based on a totality of the circumstances wilh due consideration given to the
reasonable impression conveyed to the person interrogated).
126 Video. .
127 Video.
iis Video.
18
Alvarado· various questions which he already answered, now calling into doubt the answers
Alvarado initially provided.129
Moments after commanding that Alvarado step away from his front right tire, and asking
Alvarado various questions, Trooper Acord demanded Alvarado "[sjtand over here and talk to me
a little bit more."1j0 At this time, Trooper Acord made Alvarado move again and stand directly
- I
I
. !I
between the patrol cat and the Defendant's car and states "stand on that line for me and face me."131
Trooper Acord then asks Alvarado "you don't have any weapon do you?" As Trooper Acord asks
this question, he. begins to look into Alvarado's pockets, asks what he is carrying, and perform a
brief pat down indicating the functional equivalent of an artest.132 Furthermore, at no point did
Trooper Acord offer to or actually give Alvarado his driver's license back to him. By commanding
Alvarado around, demanding Alvarado speak with him, ordering him to move two times, and
withholding his license, it was cleat that Trooper Acord took control of Alvarado and deprived
him of the his freedom to walk or drive away.133 Moreover these same facts gave the reasonable
impression to Alvarado. that he was not free to leave. 134
For the foregoing reasons, "the circumstances O of [Alvarado's] detention [became] so
coercive as to constitute the functional equivalent of an arrest" and, thus, the detention was
custodial. 135
129
Video.
130
Video.
131
Video.
I
I
132Video.
133
~ Busch, 713 A.2d at l 00 (holding that a person is subject to custodial interrogation when is deprived of his
freedom in a significant way or reasonably believes his freedom of action or movement is restricted).
134
Qm'.nn. 723 A.2d at 148.
m Mannion. 725 A.2d at 200.
19
b. Trooper Acord Asked Alvarado Incriminating Questions.
In viewing Trooper Acord's questioning in conjunction with his conduct, it is clear that
Alvarado was subject to "interrogation" during the second interaction.
Interrogation occurred during the second interaction because Trooper Acord should have
known "that [his] words or actions [were] reasonably likely to elicit an incriminating response.''136
For example, one of the first questions Trooper Acord asked Alvarado during the second
interaction was "[wjhere are you coming frotn?''137 This was a question asked during the first
interaction, but this time, the question was asked in an inquisitive tone of voice Such as to
communicate to Alvarado that Trooper Acord severely doubted the answer Alvarado had
previously given; The same can be said for the way in which Trooper Acord re-asked Alvarado
"[hjow come you' re heading this way if you' re heading home?" 138 Most notably, during the second
interaction, Trooper Acord's probing turned into purely incriminating questions. These questions
escalated from ones assessing the situation and offering aid to questions seeking to incriminate
Alvarado. Trooper Acord should have known that his "Words or actions (were] reascnablylikely
to elicit an incriminating response."!"
Trooper Acord's questioning was interrogation because his conduct was "calculated to,
expected to, or likely to evoke admission."140 Trooper Acord's conduct and questioning during the
1l6
~. 723 A.2d at 149 (ruling that "[i]nterrogation occurs where the police should know that their words or
actions are reasonably likely to elicit an incriminating response fromihe suspect.").
m Video. ·
IJI Video. The patrol video in this case indicates that Alvarado told Trooper Acord he was going home. However,
after viewing Alvarado's address on his driver's license, Trooper Acord questioned Alvarado why he was stopped at
a certain point on the highway if he lived atihe address listed on his driver's license? Mainly, Trooper Acord
believed that Alvarado missed his exit, and questioned him to that effect.
139
~ 723 A.2d at 149 (highlighting that "[i]nterrogation occurs where the police should know that their words
or actions are reasonably likely to elicit an incriminating response from the suspect.").
140
Mannion, 725 A.2d at 200 (ciiations omitted),
20
second interaction served no purpose other than to incriminate Alvarado.Trooper Acord testified
to his intent to have Alvarado incriminate himself at the suppression hearing:
Q: So you go to re-approach the defendant. What's going through your mind as
you're doing that? · ·
A: I'm going to talk to him a little bit more just to verify - actually, at that point
I'm probably thinking I want to get him to talk to me a little bit more so I get his
voice on my audio recorder. And his speech was, obviously, very - he was having
trouble answering questions. I just wanted to continue, you know, building my case
for his impairment.141 ·
Trooper Acord made it clear he wanted to "build his case tor impairment" when he directly
inquired about Alvarado's drinking that evening: This testimony shows that Trooper Acord's
conduct was "calculated to" evoke incriminating statements.142 After Trooper Acord ordered
Alvarado to move, for a Second time, between the patrol car and Alvarado's car, Trooper Acord
asked Alvarado when his last drink wa.s.143 Alvarado responded that his last drink was twenty
minutes prior to seeing Trooper Acord.144 Given that the evidence clearly indicated that Trooper
Acord suspected a DUI, this question was the linchpin ofTrooper Acord's effort to have Alvarado
incriminate himself.
For the foregoing reasons, based on the totality of the circumstances=-namely the re-asking
questions in a way such as to call to doubt Alvarado's answers, the directing of Alvarado's
movements, and asking when Alvarado's last drink was-it is clear that Trooper Acord was
interrogating Alvarado such that he was required to provide him Miranda warnings.
141
N.T. 517115, 20-21.
142
~ Mannion. 725 A.2d at 200 (asserting that interrogation is police conduct "calculated to, expected to, or likely
to evoke admission.'').
m N.T. Sl7115, 23-24.
144
N.T. 517115; 24: 1-3.
21
I'l
.,
l
.J
_f
c, Alvarado Was Subject to A Custodial Interrogation, and Was Not Provided
Miranda Warnings. Thus, Alvarado's Statements Made During the Second
loteractio~ Are Suppressed.
The questioning by Trooper Acord, during the second interaction, was a custodial
interrogation. Therefore, Miranda warnings must have been given to Alvarado. As the· United
States Supreme Court has stated, "the Miranda safeguards come into play whenever a person in
custody is subjected to either express questioning or its functional equivalent.?"! Because
Alvarado was not provided Miranda warnings, the statements obtained during the second'
interaction were a product of a violation of Alvarado's Constitutional rights.146 Accordingly, the
statements obtained during the second interaction cannot be used against Alvarado and therefore
must be suppressed.':"
d. This Court Rejects the Commonwealth's Argument That.the SecendInteracdon
Was an Investigatory Detention.
The Commonwealth argues that the second interaction was an investigatory detention
supported by reasonable suspicion, not a custodial interrogation. For the reasons previously stated,
this Court disagrees and finds that the second interaction was a custodial interrogation.
Nonetheless, this Opinion will now address the merits of the Commonwealth's argument.
Alvarado's detention during the second interaction was not temporary, it was permanent
and coercive. An "[investigative] detention is temporary ... and does not possesses the coercive
conditions consistent with a formal arrest."148 Conversely, the custodial detentions are permanent
arrests, seizures, or situations where the detention becomes so coercive such as to constitute the
145 Rhode Island v. lnnis, 446 U.S. 291, 301-302(1980).
146
Qm!.!, 912 A.2d at 255 (declaring that ''(t]he principles surrounding Miranda warnings are also well senled, The
prosecution may not use statements stemming from a custodial interrogation of a defendant unless it demonstrates
· that he was apprised of his right against self-incrimination and his right to counsel.").
147
In Interest of Mellott 476 A.2d at IJ (citations omihed)(ruling that "[ujnless a person is advised of his Miranda
rights prior to custodial interrogation by law enforcement officers in a criminal proceeding, evidence resulting from
such interrogation cannot be used against him."). ·
141 DeHart. 745 A.2d at 636.
22
functional equivalent of an arrest.149 As Trooper Acord testified, Alvarado was not free to leave
after the first interaction.
Q; So, in essence, he was detained, correct?
A; When I re-approached him?·
Q:Yes.
A; And I began to question him again?
Q:Yes.
A: At that point he was detained, yes.
Q; He was detained. Not free to leave.
A: He was not free to leave no.
Q: And if he tried to walk away you would have stopped him?
A: Absolutely. ,so
Further, as stated supra, Trooper Acord expressed to Alvarado his decision to arrest him by the
manner in which Trooper Acord conducted himself, the tenor of his questions and tone of his
voice, and manner in which he asked the questions during the second interaction. Objectively
viewing the totality of the circumstances and particular facts of this case supports a finding that
Trooper Acord gave the impression to Alvarado that he was under arrest. There is no evidence to
support a finding that the second interaction was "temporary" or not coercive and significant
evidence to the contrary. For this reason; the second interaction was not temporary; it was
permanent and, thus, a custodial detention.
The second interaction was not investigative and did not fit the purpose or character of an
investigative detention. The purpose of an investigative detention is to provide law enforcement
an opportunity to conduct further investigation into suspected criminal activity.P' When Trooper
Acord returned to his patrol car to run Alvarado's driver's license and registration number, he
149 Butler, 729 A.2d at 1137.
ISO N.T. 511115, 32: 4-14.
151
See~ 745A.2d at 638 (ruling that an investigatory detention allows law enforcement to investigate
suspected criminal activity).
23
notified his partner that Alvarado was a "drunk driver"152 and that he was "hemmered.t'!" Trooper
Acord uses the term "hammered" when describing somebody who is "more than a little drunk."154
Trooper Acord then told to his partner that he was not going to let Alvarado change his tire and
determined that Alvarado was no longer free to leave. rss
The foregoing facts clearly indicate that no further investigation was necessary to convince
Trooper Acord, who has made roughly 350 DUI arrests, that Alvarado was intoxicated and an
arrest was going to be made. For instance, Trooper Acord's use of the wordthammered," and his
corresponding description of the term, showed that there was no doubt in his mind that Alvarado
was intoxicated. Trooper Acord testified at the suppression hearing that his plan in re-approaching
Alvarado was to build his case for impairment.!" His only efforts in doing so were to ask
incriminating questions and subject Alvarado toan interrogation. These circumstances do riot.fit
the purpose of the investigative detention because once the determination to arrest was made,
Alvarado was in custody and entitled to his Miranda warnings prior to being interrogated.
This Court believes that Commonwealth v. DeHan is persuasive, distinguishable from the
case at hand, and further supports this Court's position. In DeHart, State Troopers and the
occupants of a parked car had a mere encounter where the Troopers asked.r'what's going on
here?"157 The occupant's response aroused suspicions and caused the questioning Trooper to say
to his partner "something's not right here, ... I'm going to get out of the car and see what's going
on here."158 At that point, the Troopers in DeHan exited their vehicle to approach the defendants
m Video.
Ul N.T. 517115, 20:1-10.
154 N.T. snn», 30:7-9.
15' N.T. 511115, 32:4-14.
IS6 N.T. 511115, 20-21.
m~ 145 A.2d at 635.
UI Id.
24
I'
j
to do determine if there was criminal activity.1s9 Consequently, the court's analysis was based
largely on finding if there was reasonable suspicion to permit a subsequent investigatory detention
(i.e. the Troopers exiting their cat and approaching the defendants). 160
Conversely, here, after the mere encounter between Trooper Acord and Alvarado, Trooper
Acord told his partner that Alvarado was a "drunk driver" and that he was "hammered." Trooper
Acord then said to his partner that he was not going to let· Alvarado change his tire because
Alvarado might hurt himself, and that he was not free to leave.161 Trooper Acord's expressions to
his partner are clearly distinguishable from those in DeHart; namely that "something's not right
here, ... I'm going to get out of the car and see what's going on here."162 Unlike the Troopers in
DeHart, Trooper Acord determined there was criminal activity during or after the first encounter.
With that determination in mind, unlike the circumstances in DeHart, there was nothing further to
investigate. Accordingly, Alvarado was then subject to a custodial interrogation, not an
investigatory detention, and entitled to his Miranda warnings.
For the foregoing reasons, this Court rejects the Commonwealth's argument.
II. The Blood Alcohol Results Taken At Saint Mary's Hospital Are Suppressed as A
Product Of an Unlawful Detainment, in Violation of Alvarado's Miranda Rights,
apd In Vlolgtion of the Two Hour Rule.
Alvarado was charged with 75 Pa. C.S. § 3802(c) which requires "that the alcohol
concentration in the individual's blood or breath is 0.16% or higher within two /,ours after the
individual has driven, operated or been in actual physical controi of the movement of the
vehicle."163 While the Commonwealth agrees that it has no direct evidence as to when Alvarado
U9Id.
160
ld. al 636-37.
161 N.T. 517/15, 20:14-18.
J62 .!&l:f.m, 745 A.2d at 635.
l6J 75 Pa. Cons, Stat. Ann. § 3802 (emphasis added).
25
was driving, it contends that it can meet its burden through circumstantialevidence.P' Specifically,
the Commonwealth argues that it can prove that the test results were taken within two hours of the
operation of the vehicle through Alvarado's statement that he drank twenty minutes prior to
Trooper Acord's arrival.165 However, as previously discussed, the statements made during the
second interaction, including the statement that Alvarado was drinking twenty minutes before
Trooper Acord's arrival and that he was a bar called "The Press," are suppressed.
The suppression of the statements made to Trooper Acord about when Alvarado was
drinking is determinative of this suppression ruling. Based on the suppression of the statements,
there is no circumstantial evidence or statements that Alvarado was driving, operating or in actual
physical control of the movement of the vehicle within two hours of the blood test as required
by 75 Pa. Cons. Stat. Ann. § 3802. 166
Earlier in the evening, another State Trooper, Trooper Hand, saw Alvarado on pull over on
the shoulder of the road but did not stop because he was on his way to an emergency. There Was
no evidence as to the time of this observation. There was no evidence of what was the time
between the first Trooper seeing Alvarado and when the second Trooper pulled behind him. There
was no circumstantial evidence as to how long the car was parked on the shoulder of the road.
Without the statements made by Alvarado as to the time he was drinking, there is no
circumstantial statements that Alvarado was driving, operating or in actual physical control of the
movement of the vehicle within two hours of the blood test. 167 Therefore the blood test must be
suppressed for the charge under 75 Pa. C.S. § 3802(c).
164 N.T. 517115, 10:6-10.
t65 N.T. 517115, 10:10-22.
1116•
15 Pa. Cons. Stat. Arni.§ 3802 (emphasis added).
167
N.T. S/7/IS, 74: 17-23..At the suppression hearing, this Court addressed the effect that the suppression of
Alvarado's statements would have on the application of the two-hour rule. ln doing so, this Court stated the
following: "With regard to the two-hour question, if the statement was admissible, I do believe there's sufficient
26
CONCLUSION
For the foregoing reasons, this Court properly Granted Alvardao's Motion to Suppress.
BY THE COURT:
DATE~/Q-1
r
...rJ/)i.f
-~< R0 . iiLLON,J.
, '• :)
-. )
circumstantial evidence to establish that the test was taken within the rwo-hour limit and that would have been
admissible."
27
COPIES SENT TO: Commonwealth v. Alvarado,
CP-09-CR-000730-201S
.1. ;
i-
Richard A: Gutman, Esquire
8515 Frankford Avenue
Philadelphia, PA 1913 6
Jill M. Graziano, Esquire
Office of the District Attorney
Bucks County Justice Center
100 N. Main Street, 2nd Floor
Doylestown, PA 18901 ·