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2018 PA Super 106

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN LEE THRAN

Appellant :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1155 MDA 2017
Appeal from the Judgment of Sentence July 3, 2017 In the Court of Common Pleas of York County Criminal Division at No(s): CP

- 67

- CR

- 0006925

- 2016

BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

OPINION BY OTT, J.: FILED MAY 02, 2018

Brian Lee Thran appeals from the judgment of sentence imposed on July

3, 2017, in the Court of Common Pleas of York County, following his conviction

at a bench trial on four counts of d r iving u nder the i nfluence (DUI)

. 1 In this

timely appeal, Thran argues the trial court erred in failing to suppress the

physical evidence. Thran asserts said evidence was improperly obtained after

he was subjected to an investigative detention that was not supported by a

reasonable suspicion of criminal activity. After a t horough review of the

submissions by the parties, relevant law, and the certified record, we affirm.

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1 The main count, Count 4, was DUI: Highest Rate of Alcohol (BAC .16+), 2 nd Offense , 75 Pa.C.S. § 3802(c)

. All counts were under various subsection s of Section 3802. Thran was sentenced to five year s of intermediate punishment, the first year of which to be served in the York County Prison. We note that i n addition to having a blood alcohol content (BAC) of .184, the chemical analysis of his blood also indicated Thran had trace amounts of morphine (5 1 ng/mL) and oxycodone (34 ng/mL).J

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The underlying facts of this matter are taken from the tri al court opinion

dated September 29 , 2017 and the notes of testimony of the suppression

hearing h eld on February 17, 2017.

On September 17, 2016, Northern York County Regional Police Officer

(NYCRP) Patrick McBreen was working the night shift. N.T. at 5

- 6.

At 2304 hours (11:04 p.m.), a call was made to York County Control from a named citizen (Jus tin Baugherman). [ 2 ] The call was dispatched to the Officer and the following information was obtained from the caller:

 Mr. Baugherman observed a male riding a black Harley Davidson motorcycle; and

 The male was wearing a black leather jacket; and

 The mo torcycle was swerving all over the road and passing over the white line; and

 The motorcycle was traveling north on Orchard Road, made a right onto Lincoln Highway, and pulled into Hartlob’s Garage at the corner of Orchard Road and Lincoln Highway on Rt. 3 0; and

 Mr. Baugherman made the call to 911 because he was concerned for the individual’s safety.

The Officer arrived at the location provided by the caller (Hartlob’s Garage) only eight (8) minutes after receiving the call. The Officer observed a black Harley Davidson motorcycle, and a male wearing a black leather jacket leaning on the motorcycle. Hence, the location given in the call, the description of the vehicle, and the description of what the individual was wearing were all corroborated. The Officer further testified that he had a duty to

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2 The notes of testimony and trial court opinion indicate the witness’s name is Baugherman. However, the certified record indicates the name is actually Justin Wagaman. It appears Mr. Wagaman , and his wife, w ere subpoen aed to appear at the trial before the District Justice. See NYCRPD Witness List.J

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investigate and therefore approached [the driver of the vehicle]. Officer McBreen could not recall whether he had activated his

ove rhead lights, but he indicated they may have been on.
Trial Court Opinion at 2

- 3 (citations to N.T. omitted).

We further note that Officer McBreen testified the garage was closed

and there were no other cars around at time of his interaction with Thran.

N.T. at 30.

The standard of review for an order denying a suppression motion is as

follows:

In reviewing the denial of a suppression motion, our role is to determine:

whether the suppression court's factual findings are supported by the record and whethe r 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 re ad in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the de termination 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, t he conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Jones , 605 Pa. 188, 988 A.2d 649, 654 (2010) (internal quotations and citations omitted). Our scope of review is limited to the evidence presented at the suppres sion hearing. In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1080 (2013).

Commonwealth v. Mackey , 177 A.3d 221, 226 (Pa. Super. 2017).J

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Because this matter also involves a claim of improper search and

seizure, we also consider the factors that delineate the diffe rences

between a mere encounter and an investigative detention. 3

The investigation of possible criminal activity invariably brings police officers in contact with members of the public. Depending on the circumstances, a police

- citizen encounter may implic ate the liberty and privacy interests of the citizen as embodied in both the federal constitution, see U.S. Const. art. IV, and our state constitution, see Pa. Const. art. I, § 8 . The law recognizes three distinct levels of interaction between police officers and citizens: (1) a mere encounter; (2) an investigative detention, often described as a Terry stop , see Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; and (3) a custodial detention. See Commonwealth v. Jones , 874 A.2d 108, 116 ( Pa. Super. 2005)

. “A mere encounter can be any formal or informal interaction between an officer and a citizen, but will normally be an inquiry by the officer of a citizen. The hallmark of this interaction is that it carries no official compulsion to stop or respond,” Commonwealth v. DeHart , 745 A.2d 633, 636 (Pa. Super. 2000) (internal citations and quotations omitted), and therefore need not be justified by any level of police suspicion. Commonwealth v. Polo , 563 Pa. 218, 759 A.2d 372, 375 (2000)

.

“In contrast, an ‘investigative detention’ ... carries an official compulsion to stop and respond .... Since this interaction has elements of official compulsion it requires reasonable suspicion of unlawful activity.” DeHart , 745 A.2d at 636. In addition, whil e reasonable suspicion of unlawful activity is sufficient to justify a forcible stop , it does not necessarily justify a frisk for weapons. See Commonwealth v. Davis , 102 A.3d 996, 999 (Pa. Super. 2014) (“A Terry frisk is a type of investigative detention r equiring reasonable suspicion that criminal activity is afoot and that the individual whose suspicious behavior he is investigating at close

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3 The third level of interaction between the police and a citizen, custodial detention, is not at issue. Therefore, we need not relate the law as it applies to that interaction

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range is armed and presently dangerous to the officer or to others.”) (internal quotation marks omitted, emphasis a dded). Only when the officer reasonably believes the suspect may be armed and dangerous is a weapons frisk appropriate. See Commonwealth v. Pinney , 474 Pa. 210, 378 A.2d 293, 296 (1977) (“[I]n the case of a self

- protective search for weapons, a police offic er must be able to point to particular facts from which he could reasonably infer that the individual was armed and dangerous.”).

Id . at 226

- 27 (footnotes omitted) (emphasis in original)

. Thran argues that he was subjected to an investigative detention at the

time Officer McBreen turned on his overhead emergency lights. Further, the

tip Officer McBreen responded to was insufficient to support the investigative

detention.

We begin by not ing that the trial court did not make a specific factual

finding that Officer McBreen activated his overhead emergency lights. As

quoted above, the trial court noted that Officer McBreen indicated his lights

might have been on. However, we accept that th e lights were activated as a

fact because the trial court’s analysis does not address the scenario where the

lights were not activated. All parties agree that if Officer McBreen did not

activate his overhead emergency lights, the encounter between Thran a nd

Officer McBreen would have been a mere encounter and the suppression of

evidence would not be warranted. If the trial court determined that the

overhead emergency lights had not been activated, the trial court would have

simply resolved the matter on t hose grounds. Because the trial court did notJ

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do so, and fully analyzed the issue under the premise that the overhead

emergency lights were activated, we accept that as a fact.

Whether the overhead emergency lights were activated is important

because cas e law on this issue has changed from the time of the suppression

hearing to today. 4 In November, 2017, our Supreme Court issued its decision

in Commonwealth v. Livingstone , 174 A.3d 609 (Pa. 2017). In that

decision, the Supreme Court held that when the p olice activate the overhead

emergency lights, no reasonable person would believe he or she was free to

leave. Accordingly, the person is subject to an investigative detention when

the lights are activated. Specifically, Livingston stated:

It is undeniabl e that emergency lights on police vehicles in this Commonwealth serve important safety purposes, including ensuring that the police vehicle is visible to traffic, and signaling to a stopped motorist that it is a police officer, as opposed to a potentially dangerous stranger, who is approaching. See Johonoson , 844 A.2d at 562. Moreover, we do not doubt that a reasonable person may recognize that a police officer might activate his vehicle's emergency lights for safety purposes, as opposed to a command to stop. Nevertheless, upon consideration of the realities of everyday life, particularly the relationship between ordinary citizens and law enforcement, we simply cannot pretend that a reasonable person, innocent of any crime, would not interpret the activat ion of emergency lights on a police vehicle as a signal that he or she is not free to leave.

Id. , 174 A.3d at 621.

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4 The issue of overhead emergency lights was raised at the suppression hearing and has been preserved throughout the course of this appeal. Accordingly, Thran is entitled to the application of developing case law on the issue.J

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After citing relevant portions of the Pennsylvania Driver’s Manual and

Motor Vehicle Code, our Supreme Court continued:

The fact that motor ists risk being charged with violations of the Motor Vehicle Code if they incorrectly assume they are free to leave after a patrol car, with its emergency lights activated, has pulled behind or alongside of them further supports our conclusion that a reaso nable person in Appellant's shoes would not have felt free to leave.

Id . at 622. 5

Accordingly, pursuant to Livingstone , once Officer McBreen activated

his overhead emergency lights, Thran was subjected to an investigatory

detention. We must now examine whether that detention was supported by

a reasonable suspicion of criminal activity. If so, then the detention was

justified and Thran’s argument is unavailing.

Here, the police received a phone tip from an identified caller. The caller

reported that he was witnessing erratic driving that placed, minimally, that

driver in jeopardy. Additionally, the description of the motorcycle’s actions

provided ample suspicion of impaired driving. The caller provided a

description of the driver and specifically iden tified the type of motorcycle being

operated. Finally, the caller informed the police where this erratic driving was

taking place and where the motorcycle had driven. Upon arriving at the

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5 It appears that Livingstone has overruled sub silencio Commonwealth v. Johonoson , 844 A.2d 556 (Pa. Super. 2004) and subsequent cases such as Commonwealth v. Conte , 931 A.2d 690 (Pa. Super. 2007) and Commonwealth v. Kendall , 976 A.2d 503 (Pa. Super. 2009)

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location identified by the caller a mere eight minutes following t he call, Officer

McBreen witnessed the identified brand of motorcycle and, there being no

other people nearby, 6 the presumed driver. The driver was wearing a leather

jacket as described by the caller. The trial court noted that Officer McBreen

corroborated all the information provided by the caller

. The trial court relied upon Commonwealth v. Collazo , 692 A.2d 1116

(Pa. Super. 1997) , in support of its holding that the tip from the identified

caller provided Officer McBreen with the reasonable suspicion sufficient to

justify the investigative detention. We agree.

The court noted that an officer need not personally observe suspicious activity in order to conduct an investigatory stop under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 88 9 (1968). “Identified citizens who report their observations of criminal activity to police are assumed to be trustworthy, in the absence of special circumstances.” [ In the Interest of ] S.D. , supra [479 Pa. Super. 576] at 580, 633 A.2d [172] at 174. Furthe r, the stop in S.D. was supported by the relevant factors to be considered in such cases, namely, the specificity of the description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation and the nature of the offense. Id.

Here, Officer LaCombe received a face

- to

- face citizen's complaint of a crime in progress. When he promptly arrived at the location, the officer observed appellant, matching exactly the detailed description given by the citizen. Officer LaCombe then approached ap pellant and began speaking with him about the information he had received. Under the authority of S.D. , the initial stop and questioning of appellant was proper. See also Commonwealth v. Stokes , 480 Pa. 38, 389 A.2d 74 (1978) (victim and eyewitness informa tion regarding the commission of a crime sufficient to establish probable cause); Commonwealth v. Hamme , 400 Pa.Super. 537, 583 A.2d 1245 (1990) (police can rely on

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6 Additionally, there were no other vehicles

. N.T. at 30.J

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“information from other officers or citizen witnesses;” officer made valid Terry stop based on other officer's observation of suspect's erratic driving).

We caution that the authority of a police officer in these circumstances is limited. He or she is permitted only to “approach and briefly detain” a potential suspect “for investigatory purposes.” Commonwealth v. Arch , 439 Pa.Super. 606, 654 A.2d 1141, 1143 (1995). In Arch , this court noted that while an officer is prohibited from relying on an “unparticularized suspicion” or a “hunch” as a basis for a Terry stop, he or she may rely on a police radio broadcast if the suspect matches the specific description given by the individual who reported the crime. Id. at 612

- 14, 654 A.2d at 1144 (citing Commonwealth v. Prengle , 293 Pa.Super. 64, 437 A.2d 992 (1981)).

Conversely, a “common report” is insufficient to support an investigatory stop. In Commonwealth v. Williams , 298 Pa.Super. 466, 444 A.2d 1278 (1982) , neighborhood residents informed a police officer that a particular individual was a known “bicycle thief” who had in his possession some bicycles he had stolen. When the officer later saw the individual riding a bike, he made a Terry stop to investigate the matter. This court held that the information from the citizens was insufficient to cause the officer to believe that criminal activity was afoot. The lack of a specific crime report was fatal in Williams

. A detailed citizen's report of a specific crime in progress is appropriately addressed by a prompt investigatory stop ; general information to police about a person who has broken the law in the past is not. Further, the intrusion of which appellant complains is not overly burdensome since, as in all Terry stops, the “suspect's expectation of privacy is not sufficiently i nfringed by the minimal intrusion attendant to an investigatory stop.” Commonwealth v. Epps , 415 Pa.Super. 231, 608 A.2d 1995, 1096 (1992).

Commonwealth v. Collazo , 692 A.2d at 1118

- 19 (emphasis added)

. We believe that the instant facts are sufficiently similar to Collazo

. Therefore, we find that Officer McBreen possessed a reasonable suspicion of

criminal activity that supported the investigative detention. Because theJ

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investigative detention was prope r, Thran’s argument is unavailing and he is

entitled to no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date : 05/2/2018