In re Interest of A.A.

195 A.3d 896

IN the INTEREST OF: A.A., a Minor

Appeal of: A.A.

No. 28 MAP 2017

Supreme Court of Pennsylvania.

Argued: April 10, 2018

Decided: October 17, 2018

David Rudovsky, Esq., Kairys, Rudovsky, Messing & Feinberg, LLP, for Pennsylvania Association of Criminal Defense Lawyers, Amicus Curiae.

Barbara A. Zemlock, Esq., Perry Shore Weisenberger & Zemlock, for Pennsylvania Association of Criminal Defense Lawyers, Amicus Curiae.

Christopher Robert Amthor, Esq., Bradley Adam Winnick, Esq., for A.A. Appellant.

Francis T. Chardo III, Esq., Kristie M. Falbo, Esq., Dauphin County District Attorney's Office, for Commonwealth of Pennsylvania, Appellee.

Ryan Hunter Lysaght, Esq., for Commonwealth of Pennsylvania, Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY

We granted discretionary review to resolve inconsistencies between the Superior Court's decisions in Commonwealth v. Kemp , 961 A.2d 1247 (Pa. Super. 2008) (en banc ) and Commonwealth v. Nguyen , 116 A.3d 657 (Pa. Super. 2015), specifically with regard to whether information obtained by a police officer during a lawful initial traffic stop may be used to justify re-engagement with the driver after the police officer indicates the driver is free to go, such that consent to search given during that re-engagement is valid. We conclude, under the circumstances of this case, the consent given was valid and suppression of evidence was not warranted. Accordingly, we affirm the order of the Superior Court.

On January 9, 2015, Sergeant Christopher Still of the Halifax Area Regional Police Department was on routine patrol, in the area of Market and North 2nd Streets in Halifax, Dauphin County, when he observed a black sedan straddling the yellow center line as it traveled the highway. N.T. 8/6/15 at 4-5. Sergeant Still followed the vehicle and conducted a registration check, which showed the vehicle's registration was expired. Id . at 5. Based on the expired registration, Sergeant Still stopped the vehicle. Id .

Sergeant Still identified the driver as seventeen year old A.A. (appellant) and the adult passenger as Kyle Lewis. Id . Although appellant appeared to be confused and sluggish, she provided Sergeant Still with her driver's license and an expired registration card, but failed to provide any proof of financial responsibility. Id . at 5-6. Sergeant Still took the documents back to his patrol car where he began preparing a citation for the expired registration and a warning for the failure to provide proof of financial responsibility. Id . at 6. During this time, Sergeant Still observed Lewis make furtive movements inside the vehicle and briefly open and close the passenger door. Id . Sergeant Still returned to appellant's vehicle and issued the citation and warning, at which time he smelled an odor of marijuana emanating from the interior of the vehicle. Id . at 7. Nevertheless, Sergeant Still "briefly broke contact with [appellant] by bidding her a good night" and stating she was free to go. Id . at 7, 22.

However, Sergeant Still began talking to appellant again.¹ Id . Specifically, Sergeant Still asked appellant if there was anything illegal in her vehicle, appellant cut him off and said "no," and asked if he would like to search the vehicle. When Sergeant Still responded that he wanted to search the vehicle, Lewis voluntarily stated there was a marijuana pipe in the car and that he and appellant had smoked marijuana prior to driving. Id . At this time, Sergeant Still asked appellant to step out of the vehicle and when she complied, he observed a light green pill on the driver's seat. Id . at 7-8. Sergeant Still directed appellant to stand at the back of the vehicle and also asked Lewis to step out of the vehicle. Id . at 8. During a pat-down search of both occupants for his safety, Sergeant Still discovered a BB gun in Lewis's waistband. Id . Sergeant Still removed the BB gun and handcuffed Lewis. Id .

Sergeant Still proceeded to search the vehicle. He recovered a small pill bottle from the passenger door which contained marijuana residue, the green pill from the driver's seat, and a marijuana pipe from appellant's handbag. Id . at 8-9. Lewis claimed the pill bottle belonged to him and appellant stated the green pill was a Klonopin, she had taken one earlier in the night, and had also smoked marijuana earlier in the night. Id. at 9-10. Following the search, Sergeant Still administered two field sobriety tests to appellant, both of which showed signs of impairment, and he placed her under arrest. Id . at 10-11.

A delinquency petition was filed alleging appellant committed the delinquent acts of DUI - Impaired Ability, Possession of a Controlled Substance, Possession of Drug Paraphernalia, Disregard of Traffic Lanes, and Driving an Unregistered Vehicle.² Appellant filed a motion to suppress evidence alleging the re-engagement — during which the search was conducted and the drugs and paraphernalia were discovered — was a second investigative detention which was not based on reasonable suspicion. Sergeant Still testified to the above facts at the suppression hearing. When asked why he broke off contact after the initial stop and then re-engaged appellant a second time, Sergeant Still stated "[i]t's just best practice. Even if I had stopped somebody and we were trying to get a consent [to] search, it's just best practice." Id . at 14. The court denied the motion to suppress, appellant proceeded to an adjudication and disposition hearing, and the court found the DUI - Impaired Ability, Possession of a Controlled Substance, Possession of Drug Paraphernalia, and Disregard of Traffic Lanes allegations to be substantiated. The court also changed the Driving an Unregistered Vehicle allegation to DUI - Controlled Substance or Metabolite, and held that charge was substantiated as well.³ Appellant was adjudicated delinquent, found to be in need of treatment, supervision, or rehabilitation, was placed on probation, and had her driver's license suspended for one year.

On appeal to the Superior Court, appellant challenged the denial of her suppression motion and the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a). Relying on Kemp ,⁴ the trial court looked to the totality of the circumstances, including appellant's confused and sluggish appearance, Lewis's furtive movements and opening of the passenger door, and the odor of marijuana emanating from the vehicle, all of which were observed by Sergeant Still during the initial traffic stop. Trial Court Opinion, slip op. at 6-8. Based on these facts, the trial court held the consent to search was valid because it was given during a legal detention when Sergeant Still possessed the requisite reasonable suspicion to believe appellant was involved in criminal activity and suppression was not warranted. Id . at 8.

Appellant argued to the Superior Court that Sergeant Still's actions of bidding her goodnight and breaking contact terminated the initial traffic stop and his re-initiation of contact amounted to a second investigative detention. Relying on the Superior Court's decision in Nguyen ,⁵ appellant argued Sergeant Still lacked reasonable suspicion to detain her a second time as he was required to formulate new reasonable suspicion based upon facts entirely separate from his observations during the initial traffic stop and that her consent given during that second illegal detention was invalid. The Commonwealth agreed appellant was subject to a second detention, but argued, pursuant to Kemp , the calculation of whether Sergeant Still possessed reasonable suspicion to conduct that second detention must include every fact and circumstance known to him at that time, including his observations during the initial traffic stop.

The three-judge Superior Court panel concluded it was bound by the en banc decision in Kemp , and thus rejected the limited reasonable suspicion analysis employed by appellant. In Interest of A.A. , 149 A.3d 354, 361 (Pa. Super. 2016).⁶ Instead, the panel considered the totality of the circumstances to determine whether Sergeant Still possessed reasonable suspicion for the second detention, and in this analysis, the panel included facts learned and observations made during the initial traffic stop. Id . at 361-62. The panel held it was reasonable under the totality of the circumstances for Sergeant Still to believe appellant was engaging in criminal activity, i.e ., driving under the influence of a controlled substance or metabolite, and her consent given during this detention was therefore valid. Id . at 362.

We accepted review to address the following question raised by appellant: "Whether the Superior Court's reliance on Commonwealth v. Kemp to affirm the trial [c]ourt's denial of [p]etitioner's Motion to Suppress Evidence was in contradiction with the recent holding of a different Superior Court [p]anel, Commonwealth v. Nguyen ?" In Interest of A.A. , 169 A.3d 1026 (Pa. 2017) (per curiam ). Our standard of review over an order denying suppression requires us to "consider only the Commonwealth's evidence and so much of the defense's evidence as remains uncontradicted when read in the context of the record as a whole. Where the record supports the suppression court's factual findings, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error." Commonwealth v. Johnson , 639 Pa. 196, 160 A.3d 127, 138 (2017), cert. denied , ––– U.S. ––––, 138 S.Ct. 508, 199 L.Ed.2d 393 (2017) (internal citations omitted). However, as here, "where the appeal ... turns on allegations of legal error, the suppression court's conclusions of law are not binding" as it is this Court's duty "to determine if the suppression court properly applied the law to the facts." Commonwealth v. Mistler , 590 Pa. 390, 912 A.2d 1265, 1269 (2006) (internal brackets and citation omitted). As such, the legal conclusions of the lower courts are subject to our plenary...