Commonwealth v. Dunham, 1896 MDA 2017

203 A.3d 272

COMMONWEALTH of Pennsylvania, Appellant

v.Michael P. DUNHAM

No. 1896 MDA 2017

Superior Court of Pennsylvania.

Argued October 3, 2018

Filed January 29, 2019

Justin M. Talarowski, Assistant District Attorney, York, for Commonwealth, appellant.

Anthony J. Tambourino, Public Defender, York, for appellee.

BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

OPINION BY McLAUGHLIN, J.:

The Commonwealth appeals from the order entered on November 8, 2017, which granted Michael P. Dunham's motion to suppress physical evidence discarded by him as he fled the scene of a lawful traffic stop.¹ We conclude that Dunham was lawfully seized when police initiated the stop of the vehicle in which Dunham was a passenger, and therefore, no further commands or instructions by police were required to detain Dunham at the scene. Accordingly, we reverse and remand for further proceedings.

The suppression court found the following facts:

On April 13, 2017, officers with the York City Police Department initiated a traffic stop upon observing a light blue Mazda minivan abruptly changing lanes and perceiving the vehicle to be traveling at an unsafe speed. Prior to the minivan coming to a complete stop, one (1) of the three (3) passengers fled from the passenger side of the vehicle on foot.^[2]

During the foot pursuit, which involved numerous police officers, [Dunham] ran through multiple properties and jumped various fences before being apprehended in the backyard of a residential property. While engaged in the pursuit, [Dunham] discarded a black and silver Taurus PT 111 G2 9mm [h]andgun and a small bag of marijuana [that] were later recovered by police.

Suppression Court Order and Opinion, filed November 8, 2018, at 2. In addition, the court credited the following testimony from Officer Chuck Crumpton:

I don't remember specifically saying anything directly to [Dunham]. I typically do in foot pursuits yell, police, stop. I do recall though that I was on the radio advising officers in the area that I was involved in a foot pursuit from this traffic stop, giving out a description of [Dunham], what he was wearing, the direction of travel and so forth.

Id. at 5 (quoting N.T. at 20).³ Based on this testimony, the court found that "no commands were given to [Dunham]" directing him to stop his flight and return to the minivan. Id.

Dunham was arrested and charged with firearm violations, as well as possession of marijuana.⁴ In July 2017, he filed an omnibus pretrial motion, asserting violations of his constitutional rights against unreasonable search and seizure and seeking suppression of the firearm and marijuana. See Omnibus Motion, 07/21/2017. According to Dunham, police had unlawfully pursued him for some unknown reason, and therefore, police had coerced him into discarding the contraband. Id. at 2 (unpaginated).

In September 2017, the suppression court conducted a hearing, during which the Commonwealth presented testimony from two police officers involved in Dunham's arrest. At the close of testimony, the court recognized a narrow issue to be decided: "whether the officers had a basis to detain the backseat passenger of the vehicle that they were stopping for a traffic stop when that passenger ran from the police." N.T. at 29. In support of its position, the Commonwealth cited Commonwealth v. Pratt , 930 A.2d 561 (Pa.Super. 2007), asserting that "police officers [may] control all movement in a traffic encounter." N.T. at 28. The court granted Dunham additional time to respond to the Commonwealth's argument and granted the Commonwealth "an opportunity to supplement what they have provided today as well as respond to anything provided by [counsel for Dunham]." Id. at 29-30. Dunham timely filed a memorandum in support of his motion. See Suppression Ct. Order and Op. at 3. The Commonwealth offered no further analysis.

In November 2017, the suppression court granted Dunham's motion. Id. at 1, 6. The Commonwealth timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement, seeking to preserve three issues: (1) whether police had express authority to detain and/or pursue Dunham pursuant to Pratt ; (2) whether the suppression court had erred in creating a new requirement that police must issue a verbal command prior to pursuit; and (3) whether the court erred in finding police issued no commands during the incident. See Commonwealth's Pa.R.A.P. 1925(b) Statement, 12/26/2017. In response, the court issued a statement directing our attention to its prior order and opinion.

On appeal, the Commonwealth raises the following issues, which we have restated for clarity:

I. Did the suppression court err in suppressing the evidence obtained by police which was discarded by [Dunham] during the course of police pursuit for lack of reasonable suspicion or probable cause on the sole basis that the police may or may not have issued a verbal command to stop where [Dunham] was a passenger in a vehicle lawfully detained by police in a traffic stop supported by probable cause and therefore was, himself, lawfully detained prior to the police pursuit?

II. Did the suppression court err in suppressing the evidence obtained by police which was discarded by [Dunham] during the course of police pursuit for lack of reasonable suspicion or probable cause to detain [Dunham] on the sole basis that the police may or may not have issued a verbal command to stop where [Dunham], having no reason to believe that the officers suspected him of committing a crime, engaged in an unprovoked headlong flight in a high crime area which gave officers the requisite level of suspicion to pursue?

III. Did the suppression court err in suppressing the evidence obtained by police which was discarded by [Dunham] during the course of police pursuit for lack of reasonable suspicion or probable cause to detain [Dunham] on the sole basis that the police may or may not have issued a verbal command to stop where, pursuant to relevant case law, the police had the authority to control the movement of [Dunham] as a passenger in a lawful motor vehicle stop?

See Commonwealth's Brief at 4-5 (suggested answers omitted).

Initially, as noted by Dunham, the Commonwealth has not properly preserved its second issue for review. According to the Commonwealth, suppression was not appropriate because officers possessed reasonable suspicion to pursue Dunham where his unprovoked flight occurred in a high crime area. Commonwealth's Br. at 18-21 (citing, inter alia , In re D.M. , 566 Pa. 445, 781 A.2d 1161, 1164 (2001) ("[U]nprovoked flight in a high crime area is sufficient to create a reasonable suspicion to justify a Terry stop under the Fourth Amendment") ). However, the Commonwealth did not assert this before the suppression court, nor did it otherwise preserve this issue for appeal. Accordingly, we deem it waived. See Pa.R.Crim.P 581(H) ("The Commonwealth shall have the burden of ... establishing that the challenged evidence was not obtained in violation of the defendant's rights."); Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."), 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.").

Absent waiver, we note further that this claim lacks merit. The police had initiated a lawful traffic stop of the vehicle in which Dunham was a passenger; thus, Dunham was seized prior to his flight from police. See Pratt , 930 A.2d at 563 ("A forcible stop of a motor vehicle by a police officer constitutes a seizure of a driver and the occupants.").⁵

Dunham suggests, on the same grounds, that the Commonwealth has waived its first issue—i.e. , whether suppression was warranted where Dunham fled the scene of a lawful traffic stop. However, we disagree. In our view, the Commonwealth's first and third issues are sufficiently related and properly preserved. We shall address them concurrently.

According to the Commonwealth, and as conceded by Dunham, police had probable cause to conduct a traffic stop of the vehicle in which Dunham was a passenger. See Commonwealth's Br. at 15-17. In light of the circumstances surrounding the stop, the Commonwealth suggests, a reasonable person would have believed that he was not free to leave. Id. at 17-18 (citing Commonwealth v. Livingstone , 174 A.3d 609 (Pa. 2017) ), 23. Further, under these circumstances, the Commonwealth asserts that well-established precedent, which recognizes the authority of police officers to verbally direct the movement of all persons during a lawful traffic stop, does not impose upon officers an obligation to invoke this authority with verbal commands. Id. at 21-23 (citing Commonwealth v. Brown , 439 Pa.Super. 516, 654 A.2d 1096 (1995) ; Pratt , supra ). Rather, as the forcible stop of a motor vehicle constitutes a seizure of a driver and passengers, no verbal commands proscribing Dunham's flight were necessary. Id. at 18, 23. Thus, the Commonwealth concludes, it was appropriate for police to pursue Dunham when he fled. Id. at 15-17, 23.

In his response, Dunham concedes that this Court's holding in Pratt recognizes police authority "to control all movement during a traffic stop." Dunham's Br. at 14. Nevertheless, Dunham asserts police must provide a passenger with "actual notice" that he must remain where he is. Id. According to Dunham, in contrast to the driver of an automobile stopped by police, who likely has some reasonable expectation that his or her conduct has led to the traffic stop, a passenger will not necessarily have the same expectation. Id. at 14-17. Thus, Dunham suggests, a verbal command is required. Id. at 17 (citing in support Maryland v. Wilson , 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) ).

Our scope and standard of review are well settled:

In reviewing an appeal by the Commonwealth of a suppression order, we may consider only the evidence from the appellee's witnesses along with the

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