J-A18033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY M. MIRANDA, : : Appellant : No. 1120 WDA 2018
Appeal from the Judgment of Sentence Entered July 12, 2018 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003346-2017
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 30, 2019
Anthony M. Miranda (“Miranda”) appeals from the judgment of sentence
imposed following his conviction of four counts of driving under the influence
of alcohol or controlled substances (“DUI”), and one count each of driving
while operating privilege is suspended or revoked, habitual offenders,1
possession or distribution of a small amount of marijuana, and possession of
drug paraphernalia.2 We affirm.
The trial court thoroughly set forth the relevant facts and procedural
history underlying this appeal in its Opinion, which we incorporate as though
fully set forth herein. See Trial Court Opinion, 12/27/18, at 1-9.
____________________________________________
1 Miranda had five prior DUI offenses within the past ten years.
2 See 75 Pa.C.S.A. §§ 3802(a)(1), (d)(1), (d)(2), (d)(3); id. § 1543(a); id. § 6503.1; 35 P.S. § 780-113(a)(31), (a)(32). J-A18033-19
On appeal, Miranda presents the following issue for our review:
“Whether the trial court erred when it denied [] Miranda’s Motion to Suppress
evidence obtained during a vehicle stop[,] where the police did not have
reasonable suspicion of criminal activity to justify the stop, in violation of the
Federal and Pennsylvania Constitutions?” Brief for Appellant at 5.
Our standard of review in suppression matters is well settled. “We must
determine whether the factual findings of the suppression court are supported
by the record and, assuming there is support in the record, we are bound by
the facts and may reverse if the legal conclusions drawn from those facts are
in error.” Commonwealth v. Pakacki, 901 A.2d 983, 986 (Pa. 2006)
(citation and brackets omitted). “With respect to factual findings, we are
mindful that it is the sole province of the suppression court to weigh the
credibility of the witnesses. Further, the suppression court judge is entitled
to believe all, part or none of the evidence presented.” Commonwealth v.
Swartz, 787 A.2d 1021, 1023 (Pa. Super. 2001) (en banc) (citation omitted).
“The threshold justification for a vehicle stop is reasonable
suspicion.” Commonwealth v. Hendricks, 927 A.2d 289, 290 (Pa. Super.
2007). The police may stop a motorist on reasonable suspicion of DUI. 75
Pa.C.S.A. § 6308(b); Commonwealth v. Chase, 960 A.2d 108, 116 (Pa.
2008) (stating that “[e]xtensive case law supports the conclusion [that] a
vehicle stop for DUI may be based on reasonable suspicion, as a post-stop
investigation is normally feasible.”). “In order to determine whether the police
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officer had reasonable suspicion, the totality of the circumstances must be
considered. In making this determination, [a court] must give due weight to
the specific reasonable inferences the police officer is entitled to draw from
the facts in light of his experience.” Commonwealth v. Hilliar, 943 A.2d
984, 990 (Pa. Super. 2008) (citation, brackets and ellipses omitted); see also
Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000) (stating that,
fundamentally, the inquiry for courts is whether the officer’s actions were
reasonable in light of the facts). “[T]he totality of the circumstances test does
not limit [an] inquiry to an examination of only those facts that clearly indicate
criminal conduct. Rather, even a combination of innocent facts, when taken
together, may warrant further investigation by the police officer.” Hilliar, 943
A.2d at 990 (emphasis added, citation omitted).
Here, Miranda argues that the trial court erred in determining that
reasonable suspicion existed, particularly where Moon Police Officer Ian Lucas
(“Officer Lucas”) had not observed Miranda commit any Motor Vehicle Code
(“Code”) violations prior to stopping his vehicle. See Brief for Appellant at
16-19. Miranda contends that, because it was very cold on the morning in
question, it was not unusual or suspicious for a motorist to be sitting in a
parked car with its engine running, in order to warm it up. Id. at 9. Moreover,
Miranda emphasizes that, despite the prior vehicle break-ins that had occurred
in the relevant neighborhood, the police did not have any description of the
person(s) or vehicle(s) that were involved in these offenses. Id. at 17; see
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also id. (asserting that there were no vehicle break-ins on the date of the
vehicle stop, and that the prior break-ins occurred “over an eight[-]square[-
]mile area[.]”). According to Miranda, the vehicle stop was based upon a
mere hunch of Officer Lucas, which is insufficient to establish reasonable
suspicion. Id. at 10.
In its Opinion, the trial court addressed Miranda’s claims, summarized
the applicable law, and determined that, under the totality of the combined
circumstances, Officer Lucas possessed reasonable suspicion to stop Miranda’s
vehicle, even in the absence of any Code violation. See Trial Court Opinion,
12/27/18, at 10-20. We incorporate the trial court’s cogent analysis as though
fully set forth herein. See id. In so ruling, the trial court emphasized the
following facts:
Officer Lucas personally observed the unusual driving conduct of [Miranda’s] vehicle and reasonably articulated the context of time, location, and suspicious behavior including, inter alia: mid-winter cold temperature; pre-dawn darkness; [Miranda’s] idle motoring with no vehicle lights illuminated in a suburban residential no- parking zone[, which was] subject to recent car break[-]ins; [Miranda’s] departure from North Jamestown Street upon [seeing] the marked police car; [Miranda’s] relocation to an unusual roadway position on the Westminster Road cul-de-sac[,] with [his] vehicle headlights illuminated; [Miranda’s] second departure upon [seeing] the marked police car; Officer Lucas confirming [Miranda’s] vehicle’s out-of-county license plate registration; and subsequently, upon Officer Lucas’[s] third contact[,] when he questioned [Miranda] about his reason for being in the neighborhood at that time of night.
Id. at 10-11; see also id. at 14 n.3 (wherein the court found that “[t]he
record is devoid of any reasonable activity that would have removed suspicion
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of [Miranda’s] irregular pre-dawn roadway conduct, e.g., newspaper delivery,
attendant travel from the residential area to a work location, or even casual
joyriding while mindful of the rules of the road.”).
It is well established that “[t]he determination of reasonable suspicion
must be based on commonsense judgments and inferences about human
behavior.” Commonwealth v. Leonard, 951 A.2d 393, 397 (Pa. Super.
2008) (quoting Illinois v. Wardlow, 528 U.S. 119, 125 (2000)). Here, an
officer of reasonable caution in the position of Officer Lucas, given the totality
of the above-mentioned evidence, would have been warranted in the belief
that it was appropriate to stop Miranda to investigate further. See, e.g.,
Commonwealth v. Zhahir, 751 A.2d 1153, 1157 (Pa. 2000) (stating that
suspicious conduct in an area associated with criminal activity, along with
evasive behavior, are relevant factors that contribute to reasonable
suspicion); Commonwealth v. Hamme, 583 A.2d 1245, 1247 (Pa. Super.
1990) (holding that erratic driving alone can impart a reasonable suspicion
of DUI); see also Commonwealth v. Hughes, 908 A.2d 924, 927-28 (Pa.
Super. 2006) (holding that reasonable suspicion to stop a vehicle for DUI
existed where, in early morning hours, police observed the vehicle swerving
between left and right lanes); Commonwealth v. Pine, 536 A.2d 811, 813,
814 (Pa. Super. 1988) (holding that the combination of the defendant’s
actions (including his having twice walked away upon seeing the arresting
officer’s marked patrol vehicle), the late hour, and the officer’s personal
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knowledge that the neighborhood had been the target of recent burglaries,
provided reasonable suspicion to stop defendant); Hilliar, supra
(emphasizing that even a combination of innocent facts, when taken together,
may establish reasonable suspicion).
As we discern no abuse of discretion or error of law by the trial court in
denying the Motion to Suppress, Miranda’s sole issue on appeal entitles him
to no relief.
Judgment of sentence affirmed.
Judge Bowes joins the memorandum.
Judge Nichols concurs in the result. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/30/2019
-6- Circulated 08/01/2019 03:19 PM
IN COURT OF COMMON PLEAS OF ALLEGHENY COUNTYGINAL I PENNSYLVANIA OR Criminal Division Dept. Of Court Records Allegheny CQunty1 PA COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
v. CC No. 2017-03346
ANTHONY M. MIRANDA, (1120 WDA 2018) ,::>- .. ' '
DEFENDANT ,...,... r--c"""\--; CJ - .. r-1 C"') '·; r-o -.J
OPINION .::, - ..... . . ·. IGNELZI, J.
PROCEDURAL HISTORY
On February 1, 2018, following a one-day combined Suppression Hearing and
Stipulated Non-Jury Trial before this Honorable Court, the Defendant, Anthony M.
Miranda ("Defendant") was found guilty of all eight counts charged. Verdict was
entered on Counts 1 through 8 as follows:
1) Guilty of Driving Under the Influence of Alcohol or Controlled Substance - 4th and Subsequent Offense, 75 P.S. § 3802(0)(1);
2) Guilty of Driving Under the Influence of Alcohol or Controlled Substance - 4th and Subsequent Offense, 75 P.S. § 3802(0)(2);
3) Guilty of Driving Under the Influence of Alcohol or Controlled Substance - 4th and Subsequent Offense, 75 P.S. § 3802(0)(3);
1 4) Guilty of Driving Under the Influence - 4th and Subsequent Offense, 75 P.S. § 3802(A)(1);
5) Guilty of Driving While Operating Privilege is Suspended or Revoked with BAC .02 or Higher - 3rd Offense, 75 P.S. § 1543(8)(1);
6} Guilty of being an Habitual Offender, 75 P.S. § 6503.1;
7) Guilty of Possession or Distribution - Marijuana, 35 P.S. § 780- 113(A)(31); and
8) Guilty of Possession of Drug Paraphernalia, 35 P.S. § 780-113(A)(32).
Preceding a Non-Jury Trial, Defendant, through counsel, Richard E. Romanko,
Esq., submitted a Motion to Suppress Evidence. On February 1, 2018, after hearing
on the Motion, this Court denied Defendant's Motion to Suppress and proceeded
to trial and this Court entered its verdict. On April 12, 2018, filed a Motion for
Reconsideration of the Court's Order denying Motion to Suppress Evidence. On July
12, 2018, after hearing, Defendant's Motion for Reconsideration was DENIED. See
July 12, 2018 Motion and Sentencing Transcript ("S.T.") at 4-14.
Defendant was sentenced on July 12, 2018, after receipt of the Pre-Sentence
Report. Under Count 1, Defendant was sentenced to a mandatory minimum one
year period of imprisonment, served by intermediate punishment of house arrest
with eligible releases for work, school, medical, or religious reasons; was to
2 undergo a drug and alcohol evaluation; and was assessed a $2,500 fine. Said
sentence under Count 1 to run concurrently with the 2 year period of confinement
imposed under County 5. S.T. at 26.
Under Count 5 (Driving While Operating Privilege is Suspended with BAC
.02), Defendant was sentenced to confinement for 2 years served by intermediate
punishment with house arrest and electronic home monitoring with eligible
releases for work, school, medical, or religious reasons; and was assessed a $5,000
fine and court costs. S.T. at 25-26.
DUI Counts 2, 3, and 4 were merged into Count 5.
No further penalty was assessed under Counts 6, 7, and 8 (Habitual
Offenders, Possession of Marijuana, and Possession of Paraphernalia). S.T. at 26.
The Defendant was granted House Arrest in lieu of a State Prison sentence
due to Defendant's Cystic Fibrosis diagnosis.
Defendant did not file a Post-Sentence Motion.
On August 8, 2018, Defendant filed a timely Notice of Appeal. On August 10,
2018, this Court ordered Defendant to file a Concise Statement of Errors
Complained of on Appeal Pursuant to PA.R.A.P. 1925(8). On August 31, 2018,
Defendant filed his Concise Statement of Errors on Appeal.
3 ERROR COMPLAINED OF ON APPEAL
Defendant raises the following issue for appeal: ·
Whether the trial court erred in denying Defendant's motion to suppress evidence because the vehicle stop by the police was illegal and conducted in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution and Article One, Section Eight of the Pennsylvania Constitution.
The Fourth Amendment to the United States Constitution and Article I, Section 8 of
the Pennsylvania Constitution protect individuals from unreasonable searches and
seizures. See Commonwealth v. Lyles, 626 Pa. 343, 350, 97 A.3d 298, 302 (2014).
STATEMENT OF FACTS
On Friday, January 27, 2017 at 5:00 a.m., Moon Township Police Officer Ian
Lucas was working a 7:00 p.m. to 7:00 a.m. shift on general patrol in a suburban
subdivision area known as Wessex Hills of Moon Township, Allegheny County.
Suppression/Trial Transcript, pages 5, 7 (hereafter "T.T. at 5, 7"). The specific area
being patrolled was subject to car break-ins within the past couple of weeks. T.T.
at 6-7, 22-24. Officer Lucas further described the location of the vehicle break-ins
as the northern end of Moon Township. T.T. at 22-24. He described Moon
Township as being divided into three areas; northern, central, and southern. Id.
This location was in the northern end in the area of the criminal break-in activities.
Id. Officer Lucas was in uniform and traveling in a marked vehicle in a housing plan
4 on North Jamestown Road when, at 5:00 a.m., he observed the Defendant's vehicle
stopped in an area where parking was not permitted between the hours of 2:00
a.m. to 6:00 a.m. T.T. at 5,8,24. Officer Lucas identified the vehicle parked in front
of 146 North Jamestown Road as a tan Buick sedan with "the engine running, the
headlights, taillights, everything was not illuminated, they were off, and there was
a male in the driver's seat just sitting there." T.T. at 6.
As Officer Lucas' marked vehicle passed Defendant's vehicle, the Officer
found it "odd" that "at 5:00 a.m. the vehicle was running with a sole male occupant
in the driver's seat, the headlights not on, and positioned in the roadway." T.T. at
6, 7. Officer Lucas also testified that such activity was "odd for this neighborhood.11
T.T. at 6.
At the time, Officer Lucas had been a police officer for fifteen years, the last
nine years with the Moon Township Police Department, with experience involving
twenty to twenty-five DUI arrests per year. T.T. at 4. Officer Lucas sought to "talk
to this guy real quick, make sure he's not up to any illegal activltv." T.T. at 7.
To talk with the vehicle occupant, Officer Lucas drove past the Defendant's
vehicle approximately two or three houses and made a U-turn in the middle of the
street. T.T. at 7-8. As the Officer made the U-turn, the Defendant's vehicle "was
5 gone." T.T. at 8. Officer Lucas did not observe the direction of the Defendant's
departure. T.T. at 8.
Officer Lucas continued his patrol throughout the subdivision and then
located the Defendant's vehicle on Westminster Road, a cul-de-sac one half mile
from the initial contact with Defendant's vehicle on North Jamestown Road. T.T.
at 8-9. Defendant's vehicle had headlights on, was stopped in the cul-de-sac
"perpendicular to the round part of the cul-de-sac .... in the middle of the circle
facing outward," and was "dead center, not in any particular lane." T.T. at 9-10. As
the Officer drove down the road toward the cul-de-sac to make a second contact,
the Defendant's vehicle transitioned from a stationary position to drive "right past"
the Officer's vehicle. T.T. at 10. Officer Lucas turned around in the cul-de-sac and
followed the Defendant's vehicle which made a right hand turn off of the cul-de-
sac road onto Shafer Road. T.T. at 11.
To this point, Officer Lucas did not have on nor did he activate his overhead
lights or siren as he followed the Defendant's vehicle. T.T. 10-11. Officer Lucas
followed the Defendant's vehicle for another one half mile to three-quarters of a
mile during which time he "ran the license plate to ascertain the owner of the
vehicle, and it came back to Canonsburg, Pennsylvania." T.T. at 11.
6 This Court takes judicial notice that Canonsburg is located in Washington
County and not within the confines of Moon Township, Allegheny County.
Upon receipt of the vehicle registration information, Officer Lucas believed
he needed to "stop this vehicle and find out exactly what was going on." T.T. at 11.
Officer Lucas believed he had reasonable suspicion to do so. T.T. at 11.
At 5:00 a.m. it was dark, and Officer Lucas then activated his marked vehicle's
overhead lights (not siren) and the Defendant's vehicle pulled over to the side of
the road. T.T. at 12. Officer Lucas stopped the Defendant's vehicle at 5:05 a.m.
T.T. 17-18.
Upon approaching the Defendant's vehicle, Officer Lucas observed
Defendant in the driver's seat, and "asked him what he was doing in that particular
neighborhood at that time of night not being from the neighborhood." T.T. at 12-
13. The Defendant responded with two answers: first, that he was "visiting a
friend" and second, "he was trying to find their house for a date he had arranged
with that person later on in the evening." T.T. at 13. The Defendant "was supposed
to meet the guy at 5:00 at night, but he wanted to find his house at 5:00 in the
morning." T.T. at 13.
While speaking with the Defendant, Officer Lucas detected the odor of
marijuana emanating from the vehicle. Lucas Police Report 1/30/2017
7 Supplemental Narrative (hereinafter "LPR"), T.T. at 49. Officer Lucas observed in
plain view sight a small, burnt marijuana blunt in the driver's door handle. LPR, T.T.
at 49. Officers Shelehelfa and Hinsch arrived at the scene and Defendant was
searched incident to arrest for the marijuana, revealing a small metal grinder
containing loose marijuana along with fresh marijuana in Defendant's pant cargo
pocket. LPR, T.T. at 49. Officers recovered a clear knotted plastic baggie with
white powder residue, a multi-colored glass smoking pipe with burnt marijuana,
and various bottles of liquors and beer. LPR, T.T. at 49.
Field sobriety tests were performed. LPR, T.T. at 49. While performing the
tests, Officer Lucas detected a moderate odor of alcoholic beverage emanating
from Defendant's breath and person along with the odor of marijuana. LPR, T.T. at
49. At 5:53 a.m., Defendant was subsequently transported to Sewickley Hospital
for a blood draw which was positive for cannabis, cocaine, and alcohol. Allegheny
County Office of Medical Examiner, Laboratory Toxicology Report at Lab Case No.
17LAB00906, T.T. at 49-50 (hereinafter "Lab Report"). Defendant's certified
driving record was also submitted into evidence which indicated Defendant's driver
license under suspension for DUI, and Defendant a habitual offender with five DUI
arrests in ten years with two prior Driving Under Suspended License (75 P.S.
8 §1543(b)(l.1} convictions. Pennsylvania Department of Transportation, Bureau of
Driver Licensing, Certified Driver History, 1/27 /2017; LPR, T.T. at 51-52.
At the conclusion of the Stipulated Non-Jury Trial on February l, 2018, this
Court found the Defendant guilty of each of the Counts 1 through 8. T.T. at 53.
ANALYSIS
The well-settled standard of review of a denial of a motion to suppress
evidence is as follows:
[An appellate court's] standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, [the appellate court is] bound by [those] findings and may reverse only if the court's legal conclusions are erroneous. Where ... the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to plenary review.
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (2010) (internal citations and quotation marks omitted).
9 Defendant asserts that Officer Lucas did not have reasonable suspicion to
pull over his vehicle. See Defendant's Concise Statement of Errors Complained on
Appeal, ,J8. To the contrary, this Court finds that Officer Lucas pointed to specific,
articulable facts which based upon the surrounding totality of circumstances,
supported an objective basis to establish reasonable suspicion to conduct an
investigatory stop1. This Court incorporates herein by reference its Findings of
Facts and Conclusions of Law made on the record dated February 1, 2018 (T.T. at
38-44), and reiterated at the July 12, 2018 Hearing of Defendant's Motion for
Reconsideration (S.T. at 11-14}.
As set forth in the Statement of Facts, on January 27, 2017, Officer Lucas had
contact with the Defendant's vehicle on three occasions at or around 5:00 a.m. On
the first two occasions, Officer Lucas personally observed the unusual driving
conduct of the Defendant's vehicle and reasonably articulated the context of time,
location, and suspicious behavior including, inter alia: mid-winter cold
temperature; pre-dawn darkness; Defendant's idle motoring with no vehicle lights
1 Search and seizure jurisprudence defines three levels of interaction between citizens and police officers and requires different levels of justification based upon the nature of the interaction. Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 664 (Pa. Super. 2015). These categories include (1) a mere encounter, (2) an investigative detention, and (3) custodial detentions. The first of these, 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 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 of an arrest. Finally, an arrest or "custodial detention" must be supported by probable cause. See Commonwealth v. Baldwin, 147 A.3d 1200, 1202-1203 (Pa. Super. 2016) (citation omitted).
10 illuminated in a suburban residential no-parking zone subject to recent car break-
ins; Defendant's departure from North Jamestown Street upon sight of the marked
police car; Defendant's relocation to an unusual roadway position on the
Westminster Road cul-de-sac with vehicle headlights illuminated; Defendant's
second departure upon sight of the marked police car; Officer Lucas confirming
Defendant's vehicle's out-of-county license plate registration; and subsequently,
upon Officer Lucas' third contact when he questioned the Defendant about his
reason for being in the neighborhood at that time of night.
Officer Lucas indicated that he had been an officer for 15 years, the last 9
years with the Moon Township Police Department including familiarity of the
residential community.
As set forth herein, this Court finds based upon Officer Lucas' articulated
contextual facts in light of his experience, that he made specific reasonable
inferences to establish reasonable suspicion of criminal activity to question the
Defendant:
.... when you add all these facts up and when you add up when the officer finally finds the vehicle .... The officer has enough at that point of an articulable, reasonable suspicion to stop the vehicle at that point, to affirmatively stop the vehicle. and then conduct further investigation.
S.T. at 14.
11 Officer Lucas articulated facts which in the totality of the circumstances was
sufficient to establish reasonable suspicion.
As stated by the United States Supreme Court in reviewing the propriety of
an officer's conduct, courts do not have available empirical studies dealing with
inferences drawn from suspicious behavior, and thus the Supreme Court cannot
reasonably demand scientific certainty from judges or law enforcement officers
where none exists. Illinois v. Wardlow, 528 U.S. 119, 124-125 (2000) (defendant's
presence in high crime area combined with unprovoked flight justifies Terry stop).
Thus, the determination of reasonable suspicion must be based on common-sense
judgments and inferences about human behavior. See United States v. Cortez, 449
U.S. 411,418(1981). wardtow, Id. The United States Supreme court has also
recognized that nervous, evasive behavior is a pertinent factor in determining
reasonable suspicion. Wardlow1 Id.
The uncontradicted evidence of Officer Lucas when read in the context of
the totality of circumstances supports his reasonable suspicions about the activity
of the Defendant's vehicle.
As Officer Lucas first passed Defendant's vehicle, he noted that he thought it
"odd" that the headlights were not on but the car was running, and he believed it
12 to be "odd" for a car idling in the roadway in this suburban area subdivision with
the lights off at that time in the morning - 5:00 a.m.
As Officer Lucas sought to first contact Defendant's vehicle, the Defendant's
vehicle promptly departed and the Officer did not see the direction in which the
Defendant had departed. This pre-dawn activity first garnered the officer's
attention2.
Officer Lucas then proceeded throughout the subdivision to look for the car,
and located the car in a cul-de-sac in the same neighborhood. Officer Lucas
specifically testified that the location of the car in the cul-de-sac was in the middle
of the cul-de-sac with the lights on, not parked, and not in a lane of travel. This
irregular motoring behavior further raised Officer Lucas' reasonable suspicion.
As Officer Lucas sought to have a second contact, the Defendant's vehicle
drove away. While following the vehicle, Officer Lucas attained additional
information which, under the totality of the circumstances, supported his
reasonable suspicions that criminal activity may be afoot -- he affirmed that
ownership of the Defendant's vehicle came back to an individual registered in
2 At this chronological juncture, the Officer had not engaged in an investigatory stop. The Court is mindful of the community caretaking doctrine applicable to police as adopted in Commonwealth v. Livingstone, 174 A.3d 609 (Pa. 2017). Livingstone is factually distinct. In the case sub jutiice, Officer Lucas had not concluded that the sole male occupant driver was in apparent peril, distress, or need of assistance. To the contrary, the Defendant continued to exercise freedom of movement in his vehicle, albeit raising additional continuing suspicion from his irregular activity which subsequently led to the third encounter.
13 Canonsburg, Washington County and not Moon Township, Allegheny County. The
abnormal driving pre-dawn motorist's vehicle was not registered to a
neighborhood location.
As a result of the Officer's articulated facts of the irregular activity of the
Defendant's vehicle at 5:00 a.m. in a suburban residential area after two abnormal
roadway contacts in two different locations; the recent history of vehicle break-ins;
and in conjunction with vehicle out-of-county registration information -- Officer
Lucas activated the Police vehicle's overhead lights.3
The Court finds that Officer Lucas had articulated an objective basis to
support his reasonable suspicion to encounter the Defendant and this encounter
was either a mere encounter or, at best, an investigative detention4• T.T. at 41.
3 The record is devoid of any reasonable activity that would have removed suspicion of Defendant's irregular pre- dawn roadway conduct, e.g., newspaper delivery, attendant travel from the residential area to a work location, or even casual joyriding while mindful of the rules of the road. Officer Lucas articulated facts related to the Defendant vehicle's abnormal driving activity, including idling in a residential no-parking zone and improper lane travel in a residential cul-de-sac. Moreover, Terry does not require police to observe unquestionably criminal behavior before they may perform an investigative detention. Commonwealth v. Davis, 102 A .3d 996, 1000 (Pa.Super.2014) (quoting Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa.2004)). Potential innocent explanations for Defendant's behavior do not negate reasonable suspicion. Id. 4 As previously stated in footnote 1, there are three types of encounters between law enforcement officials and private citizens. A "mere encounter" need not be supported by any level of suspicion but carries no official compulsion to stop or respond. An "investigative detention" must be supported by reasonable suspicion and subjects the suspect to a stop and a period of detention, but it does not have the coercive conditions that would constitute an arrest. The courts determine whether reasonable suspicion exists by examining the totality of the circumstances. An arrest, or "custodial detention," must be supported by probable cause. In re J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016).
14 "There is nothing in the Constitution which prevents a policeman from
addressing questions to anyone on the streets." Terry v. Ohio, 392 U.S. l, 34, 88
S.Ct. 1868, 1886, 20 L.Ed.2d 889 (1968). In the case of Commonwealth v. Barnett,
484 Pa. 211, 215, 398 A.2d 1019, 1021 (1979), citing Commonwealth v. Berrios,
437 Pa. 338, 340, 263 A.2d 342-343 (1970), our Supreme Court reaffirmed the well-
settled Terry standard that:
A policeman may legally stop a person and question him. But he may not without a warrant restrain that person from walking away ... , unless he has 'probable cause' to arrest that person or he observes such unusual and suspicious conduct on the part of the person who is stopped ... that the policeman may reasonably conclude that criminal activity may be afoot .... " (Footnote omitted)
The line of distinction between merely "approaching a person and
addressing questions to him" or "legally stopping" him, and restraining him or
making a "forcible stop," Terry, 392 U.S. at 32, is not subject to precise definition
because of "the myriad daily situations in which policemen and citizens confront
each other on the street." Terry, 392 U.S. at 12. Each factual situation must be
examined to determine if force was used to restrain the citizen in some way. Such
force may include "physical force or (a) show of authority." Terry, 392, n. 16.
This Court finds that Officer Lucas' third contact with the Defendant's vehicle
initiated as a mere encounter simply because, as the Court noted in the closings of
15 the parties, a policeman may legally stop a person and question him5• Terry, supra.
Officer Lucas had contact with Defendant's vehicle on two previous occasions: 1)
his initial observation of the Defendant's vehicle with headlights off and the engine
running in a non-parking zone on North Jamestown Road and, 2) on the second
contact when Defendant's vehicle was improperly positioned in the cul-de-sac on
Westminster Road. The Court finds that the Officer activating his overhead lights
after the first two contacts was to conduct an inquiry based upon the totality of
circumstances and Officer Lucas' direct observations of the Defendant vehicle's
irregular roadway activity at 5:00 a.m. in a residential area subject to a recent rash
of vehicle criminal activity6.
5 Pennsylvania Courts and the United States Supreme Court have repeatedly held a seizure does not occur where officers merely approach a person in public and question the individual or request to see identification. See Commonwealth v. Singleton, 169 A.3d 79, 82-83 {Pa. Super. 2017) citing to Hiibel v. Sixth Judicial District of Nevada, 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (quoting INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (officer free to ask for identification without implicating Fourth Amendment, and requests for identification do not, by themselves, constitute seizures); Florida v, Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citation omitted) (even when officers lack suspicion, no Fourth Amendment violation where they merely approach individuals on street to question them or request identification); [Commonwealth v.] Au, [615 Pa. 330, 42 A.2d 1002,} 1007-09 [ (2012) ) (citations omitted) (same); Commonwealth v. Ickes, 582 Pa. 561, 873 A.2d 698, 701-02 (2005) (citation omitted) (same). Officers may request identification or question an individual "so long as the officers do not convey a message that compliance with their requests is required." Bostick, at 437, 111 S.Ct. 2383. Although police may request a person's identification, such individual still maintains " 'the right to ignore the police and go about his business.' "See In re D.M., 556 Pa. 445, 781 A.2d 1161, 1164-65 (2001) (citations omitted) (quoting Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ).
6 At trial, Defendant relied on Commonwealth v. Morrison, 2017 Pa.Super. 194, 166 A.3d 357 (2017) (suppression granted under the totality of circumstances, as the quality and quantity of information provided by an unknown source was insufficiently reliable to establish reasonable suspicion). Morrison is distinguishable. In the instant matter, Officer Lucas had personal knowledge of the recent vehicle break-ins; and relied upon his own observations, training, and experience as a police officer to identify the sole male occupant of the vehicle, its irregular roadway activity, the pre-dawn time of day and darkness, its stop in a no-parking zone, the nature of the residential neighborhood, absence of any reasonable explanation for the unusual activity, and confirmation of out-of-county license plate registration.
16 As a practical matter, Officer Lucas' two previous contacts in his marked
police vehicle with the Defendant's vehicle did not alleviate his concerns about the
Defendant' s "odd" conduct but, to the contrary, provided further information and
additional personal observations to heighten his suspicions. As Officer Lucas
testified about his report, "Based upon the above-stated [police report] details and
now that the plate was not local to the area, I felt I had reasonable suspicion to
initiate a traffic stop." LPR, T.T. at 19.
Moreover, the Court is mindful of the common sense practicalities involved
in the contacts between Officer Lucas and the Defendant. In the late January pre-
dawn darkness and cold temperature both Officer Lucas and the Defendant were
in their respective vehicles. Factually distinguishable from a mere encounter with
a pedestrian to briefly question, the Defendant was in a vehicle that on two
occasions drove away from the marked police vehicle after it had engaged in "odd"
and unusual motoring. At the suppression hearing sub judice, this Honorable Court
noted the following:
The actions of the Defendant, or drawing the proper inference of seeing the police vehicle and leaving, puts the officer in a position where, obviously, he can't have a mere encounter because the
17 vehicle leaves and is moving .... So obviously the officer can't have a mere encounter7• He has to stop the vehicle first.
S.T. at 17.
"In striking the balance between the public interest and the individual's right
to personal security free from arbitrary interference of law enforcement officials,
the initial inquiry must focus upon the propriety of the initial restraint of appellant's
freedom of movement." Commonwealth v Robinson, 410 Pa.Super. 614, 600 A.2d
957, 960 (1991) citing Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298,
1300-1301 (1978).
Applying the totality of factual circumstances test, after having contact with
the Defendant's vehicle on two previous occasions, Officer Lucas engaged the
minimal exercise of authority to question the Defendant about his pre-dawn out-
of-county irregular residential neighborhood activities. In the pre-dawn darkness,
Officer Lucas activated his police vehicle's overhead lights but not his siren. Law
enforcement officers do not violate the Fourth Amendment's prohibition of
unreasonable seizures merely by approaching individuals on the street or in other
7 A mere encounter constitutes a request for information, but carries no official compulsion to stop and respond. See Commonwealth v. Baldwin, 147A.3d 1200, 1202-03 (Pa. Super. 2016).
18 public places and putting questions to them if they are willing to listen. United
States v. Drayton, 536 U.S. 194, 200 (2002).
Common sense dictates that for the safety of both the officer and the
motorist -- under the pre-dawn winter circumstances -- the activation of overhead
lights was the most minimally restrictive exercise of authority to permit Officer
Lucas to safely approach the Defendant's vehicle and ask questions. In addition,
at the point Officer Lucas activates the overhead lights, he had reasonable,
articulable suspicion that criminal activity was afoot to make the investigative
detention. S.T. at 18.
As set forth in Commonwealth v. Carter, 105 A.3d 765, 768-69 (Pa. Super
2014) (en bane) appeal denied 632 Pa. 667, 117 A.3d 295 (2015):
[t]he Fourth Amendment permits brief investigative stops ... when a law enforcement officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. It is axiomatic that to establish reasonable suspicion, an officer must be able to articulate something more than an inchoate and unparticularized suspicion or hunch .... [A]s the Supreme Court has long recognized, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 {1968) is an exception to the textual standard of probable cause. A suppression court is required to take into account the totality of the circumstances-the whole picture. When conducting a Terry analysis, it is incumbent on the suppression court to inquire, based on all of the circumstances known to the officer ex ante, whether an objective basis for the seizure was present.
19 This Court finds that that Officer Lucas had an articulable reasonable
suspicion that criminal activity was afoot. In light of the totality of the
circumstances, considering all of the facts that the officer testified to, the Court
concludes that the officer possessed a reasonable suspicion that criminal activity
was afoot and/or that was that the Defendant may well be a possible suspect
involved in car break-ins as has been reported in the area in the preceding week.
This Court finds that the officer's actions were appropriate and reasonable
both under the confines of the Fourth Amendment of the United States
Constitution and the search and seizure provisions of the Commonwealth of
Pennsylvania's Constitution, and accordingly, the Court reaffirms denial of the
Defendant's Motion to Suppress and Verdict.
CONCLUSION
In conclusion, this Court submits that the verdict and sentence of Defendant
Anthony M. Miranda be AFFIRMED.
BY THE COURT: