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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant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

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- 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 or der entered on November 26, 2012, in the Court of Common Pleas of P hiladelphia 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 lugg age following his arrival at Philadelphia International Airport on a flight from Puerto Rico. The Commonwealth claims the trial court erred in classify ing the encounter between law enforcement and Garcia as an investigative detention unsupported by reasonable suspicion. Following a thorou gh review of theJ-A09024- 14

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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 a n appeal as of right from an order that does not end the entir e case where the Commonwealth certifies in the notice of appeal tha t the order will terminate or substantially handicap the prosecution.”). The pretrial suppression of evidence critical to the prose cution is an appropriate basis for a [Pa.R.A.P.] Rule 311(d) ap peal. Commonwealth v. Brugger , 88 A.3d 1026, 1033 (Pa. Super. 2014)(citation omitted). The Commonwealth has proper ly certified the order under appeal will substantially handicap the prosecutio n. The applicable standard of review when the Commonweal th 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 conside r only the evidence from the defendant's witnesses together with th e evidence of the prosecution that, when read in the cont ext of the entire record, remains uncontradicted. The suppression co urt'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).

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1 Garcia did not file an Appellee’s Brief.J-A09024- 14

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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 Common wealth presented the testimony of arresting agent, DEA Interd iction Unit Agent Alan Basewitz and Trooper Alfredo [sic] Mor eno [ 2] of the Mass Transportation Interdiction Task Force Group. Viewing the evidence in the light most favorable to the defen dant, as the motion winner, the testimony of these witnesses establish ed the following. On October 31, 2011, Agent Basewitz arriv ed at the Philadelphia International Airport after receiving i nformation from DEA San Juan reporting two “suspicious individuals,” traveling on one-way tickets possibly purchased with cash

. Agent Basewitz testified that the Interdiction Unit wa s provided with a general description of the individuals, which in cluded 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 gla ncing back and conversing. Once inside the terminal, Agent B asewitz, based on information received by Special Agent Hill ob served the defendant and Vargas. After observing defendant take a piece of luggage off of the carousel, the agent began to follo w both defendant and Ms. Vargas as they walked toward the d irection 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 appro ximately 15 or 20 feet apart at this time. Agent Basewitz te stified that upon approaching defendant, he displayed his paper cre dentials, identified himself as a police officer, and asked defen dant 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 M oreno was acting as an interpreter for Special Agent Brain Da urity who was engaged in an encounter with Ms. Vargas. While Age nt

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2 The notes of testimony indicate the Trooper’s name is Wi lfredo Moreno.J-A09024- 14

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Basewitz was speaking with defendant he observed officer s 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 co nducting a translation interview in Spanish. He identified hims elf as a law enforcement officer and displayed his task force credentia ls 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. [sic 3 ] Defendant also stated that he had packed his own luggage, that nobod y 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 h is person to which he replied, “sure, go ahead” in Spanish. Defendant was placed in handcuffs after the discovery o f 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 t hat was unsupported by a reasonable suspicion of any criminal activity and accordingly, the

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3 The notes of testimony contain no reference to an uncl e.

4 Here, the trial court cites to pages 36 and 72 of the notes of testimony. However, neither page supports this statement. Our rev iew of the certified record shows that page 36 contains no reference to handcuf fs or Ms. Vargas. Testimony by Trooper Moreno on page 72 indicates only that Garcia was not in handcuffs as he was being questioned. Agent Basewit z 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 Gar cia after it was found on Vargas, the trial court’s statement is true, b ut Garcia was not placed in handcuffs immediately after the drugs were fo und in Vargas’s bag, as might be suggested by the trial court’s characteriza tion.J-A09024- 14

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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 inter action 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 leve l of suspicion, but carries no official compulsion to stop or respond. The second, an “investigative detention” must b e 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. Vali d 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 validi ty, an investigative detention must be supported by a reasonable and articulable suspicion that the person seize d is engaged in criminal activity and may continue only so long as is necessary to confirm or dispel such suspicion; wh ereas, a custodial detention is legal only if based onJ-A09024- 14

- 6 - probable cause. To guide the crucial inquiry as to wheth er 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 circumsta nces, the focus is directed toward whether, by means of phy sical force or show of authority, the citizen-subject's movemen t ha s 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 occurre d.

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 tr ial court’s legal analysis. In determining Garcia was subject to an invest igative 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 investigati ve detention. To determine whether or not a seizure ha s taken place for the purposes of an investigative detention, t he United States Supreme Court “has devised an objective test entai ling a determination of whether, in view of all surrounding circumstances, a reasonable person would have believed tha t 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 autho rity, th e citizen’s movement was restrained in some way. Id . The agent in this case observed the defendant at the baggage clai m area and subsequently stopped him before he exited the air port. While stopped, [the] defendant was subjected to a transl ation interview with the help of a Spanish speaking troope r that was composed of roughly 10 to 15 questions, as well as a search of both his person and his baggage. Additionally, both the agentJ-A09024- 14

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and the trooper were standing in front of the defend ant at a distance of ap proximately one arm’s length. A reasonable person would not have believed that he was free to le ave. 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 enf orcement credentials when defendant was stopped. As a reasonable person, defendant did not feel free to leave under t he circumstances, and the agents had in fact engaged him in a n 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 investigativ e detention. The trial court’s determination of investigative deten tion was based on three factors. First, the police talked to Garcia. Se cond, they identified themselves as police. Third, they stood in front of G arcia. 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 me re encounter. See

Williams , supra . Therefore, Agent Basewitz was allowed to approach Garcia and ask him if he would answer a few questions. A ccordingly, talking to Garcia does not lead to the conclusion Garcia was inap propriately stopped. The police identified themselves by showing their cre dentials. While

the trial court classifies this action as a show of authori ty that led Garcia to believe he could not leave, identifying one’s se lf as a law enforcement officer, here by showing an ID card, would seem to be p art and parcel ofJ-A09024- 14

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asking the person if he or she would answer a few questi ons. 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 r ationale, nor do we see any reason, why confirming one’s identity to a person b y showing an ID card equates to an improper show of authority. Finally, the police officers, Agent Basewitz and the t ranslator, Trooper Moreno, stood in front of Garcia. However, as the tri al 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 Tr ooper 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 Co urt determined the defendant was subjected to a mere encounter.

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5 The voluntary answering of questions is part of the me re encounter. Commonwealth v. Jones , 874 A.2d 108, 116 (Pa. Super. 2005).J-A09024- 14

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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 an d identification information, which Dowds agreed to prov ide. Dowds was not confronted by a large number of police of ficers or interrogated regarding narcotics possession, and as she te stified, the officers’ demeanor was polite.

Commonwealth v. Dowds , 761 A.2d 1125, 1130 (Pa. 2000). Instantly, the trial court made no specific findings rega rding 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 Troop er Moreno were in plain clothes. Testimony of the two men indicates the co nversation with Garcia was civil in tone. Garcia was not surrounded by o fficers; the only reason Trooper Moreno was present was to allow Garcia to converse in Spanish. There is no testimony that Garcia was asked ab out drugs. In light of the above, we conclude that the trial cou rt committed an error of law in classifying the contact between Garcia, Agent Basewitz and Trooper Moreno as an investigative detention unsuppor ted 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 r esult of the consent

search.

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6 Although we have determined the contact with Garcia w as a mere encounter, it is apparent that, at the latest, the pol ice had reasonable suspicion to investigatively detain Garcia after drugs w ere found in Vargas’s possession.J-A09024- 14

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Order granting suppression of evidence is reversed. Th is matter is remanded for further proceedings. Jurisdiction relinq uished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/29/2014