J-A09024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellant 

v.

ALBERTO R. GARCIA 

 Appellee No. 3503 EDA 2012 

Appeal from the Order November 26, 2012 

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014673-2011 

BEFORE: BOWES, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.: FILED JULY 29, 2014 

 The Commonwealth of Pennsylvania appeals from the order entered on 

November 26, 2012, in the Court of Common Pleas of Philadelphia County, 

suppressing physical evidence, specifically one kilogram of cocaine, found in 

Defendant Alberto R. Garcia’s possession. Law enforcement personnel 

searched Garcia, with his consent, after he picked up luggage following his 

arrival at Philadelphia International Airport on a flight from Puerto Rico. The 

Commonwealth claims the trial court erred in classifying the encounter 

between law enforcement and Garcia as an investigative detention 

unsupported by reasonable suspicion. Following a thorough review of the 
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Commonwealth’s brief,1

 the certified record, and relevant law, we reverse 

and remand for further proceedings. 

 Initially, we note, 

[i]n a criminal case, ... the Commonwealth may take an appeal 

as of right from an order that does not end the entire case where 

the Commonwealth certifies in the notice of appeal that the 

order will terminate or substantially handicap the prosecution.”). 

The pretrial suppression of evidence critical to the prosecution is 

an appropriate basis for a [Pa.R.A.P.] Rule 311(d) appeal. 

Commonwealth v. Brugger, 88 A.3d 1026, 1033 (Pa. Super. 

2014)(citation omitted). The Commonwealth has properly certified the order 

under appeal will substantially handicap the prosecution. 

The applicable standard of review when the Commonwealth appeals 

from a suppression order is as follows: 

When the Commonwealth appeals from a suppression order, we 

follow a clearly defined standard of review and 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. The suppression court's 

findings of fact bind an appellate court if the record supports 

those findings. The suppression court's conclusions of law, 

however, are not binding on an appellate court, whose duty is to 

determine if the suppression court properly applied the law to 

the facts. 

Commonwealth v. Newman, 84 A.3d 1072, 1076 (Pa. Super. 

2014)(citation omitted). 

____________________________________________ 

1 Garcia did not file an Appellee’s Brief.
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 We recite the factual history as related by the trial judge in her 

Pa.R.A.P. 1925(a) opinion. 

At the Suppression Hearing, (the “Hearing”), the Commonwealth 

presented the testimony of arresting agent, DEA Interdiction 

Unit Agent Alan Basewitz and Trooper Alfredo [sic] Moreno[2] of 

the Mass Transportation Interdiction Task Force Group. Viewing 

the evidence in the light most favorable to the defendant, as the 

motion winner, the testimony of these witnesses established the 

following. On October 31, 2011, Agent Basewitz arrived at the 

Philadelphia International Airport after receiving information 

from DEA San Juan reporting two “suspicious individuals,” 

traveling on one-way tickets possibly purchased with cash. 

Agent Basewitz testified that the Interdiction Unit was provided 

with a general description of the individuals, which included 

information based on their clothing, physical makeup, and age. 

While at Philadelphia International Airport, Agent Basewitz 

received information from DEA Special Agent Eric Hill that he had 

observed defendant deplane and that a female who was later 

identified by the name of Vargas was following him. Defendant 

was also observed walking ahead of Ms. Vargas while glancing 

back and conversing. Once inside the terminal, Agent Basewitz, 

based on information received by Special Agent Hill observed the 

defendant and Vargas. After observing defendant take a piece of 

luggage off of the carousel, the agent began to follow both 

defendant and Ms. Vargas as they walked toward the direction of 

the airport exit. At this point, Special Agent Brian Daurity then 

approached Ms. Vargas while Agent Basewitz approached 

defendant. The defendant and Ms. Vargas were approximately 

15 or 20 feet apart at this time. Agent Basewitz testified that 

upon approaching defendant, he displayed his paper credentials, 

identified himself as a police officer, and asked defendant if he 

could briefly speak with him. At the time that the conversation 

took place defendant was not in handcuffs. 

While Agent Basewitz stopped the defendant, Trooper Moreno 

was acting as an interpreter for Special Agent Brain Daurity who 

was engaged in an encounter with Ms. Vargas. While Agent 

____________________________________________ 

2 The notes of testimony indicate the Trooper’s name is Wilfredo Moreno.
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Basewitz was speaking with defendant he observed officers 

conduct a search of the bag that Ms. Vargas had claimed, which 

revealed a kilo of cocaine that had been removed from a Lite 

Brite toy. Trooper Moreno then came to where Agent Basewitz 

had stopped defendant in order to aid the agent in conducting a 

translation interview in Spanish. He identified himself as a law 

enforcement officer and displayed his task force credentials for 

defendant. 

When questioned about Ms. Vargas and why he was in 

Philadelphia, defendant replied that he had just met Ms. Vargas 

that day at the baggage claim area and that he was in

Philadelphia to visit his aunt and uncle. [sic3

] Defendant also 

stated that he had packed his own luggage, that nobody had 

solicited him to carry anything, and that the items in his bag 

belonged to him. During the course of the translation interview 

defendant was asked for permission to search his bag and his 

person to which he replied, “sure, go ahead” in Spanish. 

Defendant was placed in handcuffs after the discovery of the 

cocaine in Ms. Vargas’[s] bag.[4]

Trial Court Opinion, 7/03/2013, at 2-3 (citations to record omitted). 

 Based upon the preceding information, the trial court determined that 

Garcia had been subject to an investigative detention that was unsupported 

by a reasonable suspicion of any criminal activity and accordingly, the 

____________________________________________ 

3

 The notes of testimony contain no reference to an uncle. 

4

 Here, the trial court cites to pages 36 and 72 of the notes of testimony. 

However, neither page supports this statement. Our review of the certified 

record shows that page 36 contains no reference to handcuffs or Ms. Vargas. 

Testimony by Trooper Moreno on page 72 indicates only that Garcia was not 

in handcuffs as he was being questioned. Agent Basewitz testified he did not 

handcuff Garcia until he found the cocaine on him. See N.T. Hearing, 

11/26/2012, at 33. Because the cocaine was found on Garcia after it was 

found on Vargas, the trial court’s statement is true, but Garcia was not 

placed in handcuffs immediately after the drugs were found in Vargas’s bag, 

as might be suggested by the trial court’s characterization.
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evidence subsequently obtained was fruit of the poisoned tree. However, 

the Commonwealth argues Garcia was subjected only to a mere encounter. 

Our courts have long recognized three levels of interaction 

that occur between the police and citizens that are 

relevant to the analysis of whether a particular search or 

seizure conforms to the requirements of U.S. CONST. 

amend. IV and PA. CONST. art I, § 8. 

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 

respond. The second, an “investigative detention” must be 

supported by reasonable suspicion; it subjects a suspect to

a stop and period of detention, but does not involve such 

coercive conditions as to constitute the functional 

equivalent of arrest. Finally, an arrest or “custodial 

detention” must be supported by probable cause.

Commonwealth v. Phinn, 761 A.2d 176, 181 (Pa. Super. 

2000) (quoting Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 

1043, 1047 (1995) (citations and footnotes omitted)).

[I]n assessing the lawfulness of citizen/police encounters,

a central, threshold issue is whether or not the citizensubject has been seized. Instances of police questioning 

involving no seizure or detentive aspect (mere or 

consensual encounters) need not be supported by any 

level of suspicion in order to maintain validity. Valid 

citizen/police interactions which constitute seizures 

generally fall within two categories, distinguished 

according to the degree of restraint upon a citizen's 

liberty: the investigative detention or Terry [v. Ohio, 392 

U.S. 1 (1968)] stop, which subjects an individual to a stop 

and a period of detention but is not so coercive as to 

constitute the functional equivalent of an arrest; and a 

custodial detention or arrest, the more restrictive form of 

permissible encounters. To maintain constitutional validity, 

an investigative detention must be supported by a 

reasonable and articulable suspicion that the person seized 

is engaged in criminal activity and may continue only so

long as is necessary to confirm or dispel such suspicion; 

whereas, a custodial detention is legal only if based on 
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probable cause. To guide the crucial inquiry as to whether 

or not a seizure has been effected, the United States 

Supreme Court has devised an objective test entailing a

determination of whether, in view of all surrounding

circumstances, a reasonable person would have believed 

that he was free to leave. In evaluating the circumstances, 

the focus is directed toward whether, by means of physical 

force or show of authority, the citizen-subject's movement 

has in some way been restrained. In making this 

determination, courts must apply the totality-of-thecircumstances approach, with no single factor dictating the 

ultimate conclusion as to whether a seizure has occurred. 

Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 

889-90 (2000)(internal citations and footnotes omitted). 

Commonwealth v. Lyles, 54 A.3d 76, 79-80 (Pa.Super. 2012) 

Commonwealth v. Williams, 73 A.3d 609, 613-14 (Pa.Super. 2013), 

appeal denied, 87 A.3d 320 (Pa. 2014). 

With the facts and standards in place, we turn to the trial court’s legal 

analysis. In determining Garcia was subject to an investigative detention, 

the trial court stated, in toto, in its Pa.R.A.P. 1925(a) opinion: 

 In the case at hand, there clearly was an investigative 

detention. To determine whether or not a seizure has taken 

place for the purposes of an investigative detention, the United 

States Supreme Court “has devised an objective test entailing a 

determination of whether, in view of all surrounding

circumstances, a reasonable person would have believed that he 

was free to leave.” Com. v. Strickler, 757 A.2d 884, 889 (Pa. 

2000). When evaluating the circumstances, the primary focus is 

on whether by means of physical force or show of authority, the 

citizen’s movement was restrained in some way. Id. The agent 

in this case observed the defendant at the baggage claim area 

and subsequently stopped him before he exited the airport. 

While stopped, [the] defendant was subjected to a translation 

interview with the help of a Spanish speaking trooper that was 

composed of roughly 10 to 15 questions, as well as a search of 

both his person and his baggage. Additionally, both the agent 
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and the trooper were standing in front of the defendant at a 

distance of approximately one arm’s length. A reasonable 

person would not have believed that he was free to leave. 

Moreover, although [the] defendant was not physically 

restrained at the time, there was undoubtedly a show of 

authority by both officers who displayed their law enforcement 

credentials when defendant was stopped. As a reasonable

person, defendant did not feel free to leave under the 

circumstances, and the agents had in fact engaged him in an 

investigative detention. 

Trial Court Opinion, 7/03/2013, at 5-6. Based upon our review of the 

certified record, we conclude the trial court erred as a matter of law in 

classifying the encounter with Garcia as an investigative detention. 

The trial court’s determination of investigative detention was based on 

three factors. First, the police talked to Garcia. Second, they identified 

themselves as police. Third, they stood in front of Garcia. These factors do 

not lead to the conclusion that Garcia was involuntarily detained. Rather, 

they are the definition of a mere encounter. 

 The police need no level of suspicion to initiate a mere encounter. See 

Williams, supra. Therefore, Agent Basewitz was allowed to approach 

Garcia and ask him if he would answer a few questions. Accordingly, talking 

to Garcia does not lead to the conclusion Garcia was inappropriately 

stopped. 

 The police identified themselves by showing their credentials. While 

the trial court classifies this action as a show of authority that led Garcia to 

believe he could not leave, identifying one’s self as a law enforcement 

officer, here by showing an ID card, would seem to be part and parcel of 
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asking the person if he or she would answer a few questions. For the 

conversation to be voluntary, the citizen in question should be aware he or 

she is talking to law enforcement personnel.5

 Therefore, the police must 

identify themselves. The trial court puts forth no rationale, nor do we see 

any reason, why confirming one’s identity to a person by showing an ID card 

equates to an improper show of authority. 

 Finally, the police officers, Agent Basewitz and the translator, Trooper 

Moreno, stood in front of Garcia. However, as the trial court found, Garcia 

was not physically restrained and there is no indication that they barred 

Garcia or that he could not have simply walked around the men, had he 

been so inclined. Additionally, Agent Basewitz and Trooper Moreno were 

talking to Garcia. The most logical place for them to be standing would be in 

front of Garcia. 

Viewing the evidence presented at the hearing in the light most 

favorable to Garcia, as verdict winner, we nonetheless believe the instant 

matter is very similar to the situation presented in Commonwealth v. 

Dowds, 761, A.2d 1125 (Pa. 2000), in which our Supreme Court determined 

the defendant was subjected to a mere encounter. 

____________________________________________ 

5

 The voluntary answering of questions is part of the mere encounter. 

Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005). 

 
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The officers who approached Dowds were in plain clothes, did 

not display weapons, identified themselves, explained their 

duties at the airport, and merely requested ticket and 

identification information, which Dowds agreed to provide. 

Dowds was not confronted by a large number of police officers or 

interrogated regarding narcotics possession, and as she testified, 

the officers’ demeanor was polite. 

Commonwealth v. Dowds, 761 A.2d 1125, 1130 (Pa. 2000). 

Instantly, the trial court made no specific findings regarding many of the 

factors cited in Dowds. We are not a fact-finding court, but our review of

the certified record shows uncontradicted testimony that no weapons were 

displayed. The record infers Agent Basewitz and Trooper Moreno were in 

plain clothes. Testimony of the two men indicates the conversation with 

Garcia was civil in tone. Garcia was not surrounded by officers; the only 

reason Trooper Moreno was present was to allow Garcia to converse in 

Spanish. There is no testimony that Garcia was asked about drugs. 

 In light of the above, we conclude that the trial court committed an 

error of law in classifying the contact between Garcia, Agent Basewitz and 

Trooper Moreno as an investigative detention unsupported by a reasonable 

suspicion of criminal activity.6

 Accordingly, the trial court erred in granting 

Garcia’s motion to suppress the evidence obtained as a result of the consent 

search. 

____________________________________________ 

6

 Although we have determined the contact with Garcia was a mere 

encounter, it is apparent that, at the latest, the police had reasonable 

suspicion to investigatively detain Garcia after drugs were found in Vargas’s 

possession. 
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 Order granting suppression of evidence is reversed. This matter is 

remanded for further proceedings. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/29/2014