J-A12006-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DELBERT J. RAY

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1343 WDA 2019

Appeal from the Judgment of Sentence Entered July 31, 2019

In the Court of Common Pleas of Beaver County Criminal Division at

No(s): CP-04-CR-0000728-2018

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.* MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 18, 2020

Appellant, Delbert J. Ray, appeals from the judgment of sentence

imposed by the Court of Common Pleas of Beaver County (trial court) following

his conviction for driving under the influence (DUI) - high rate of alcohol.1

Appellant argues that the trial court erred in denying his motion to suppress

the results of a breath test for blood alcohol and other evidence, on the ground

that the evidence was obtained as a result of an investigative detention

without reasonable suspicion. For the reasons that follow, we affirm. Appellant was arrested on the evening of February 3, 2018, after an

officer of the Pennsylvania State Police, Corporal Joseph Olayer, had followed

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(b).
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Appellant’s pickup truck and asked Appellant a number of questions after

Appellant had parked and walked away from his vehicle. Appellant filed a

motion to suppress and a hearing on the motion to suppress was held on

October 2, 2018. Two witnesses testified at the suppression hearing, Corporal

Olayer and Appellant.

The trial court judge who ruled on Appellant’s suppression motion found

the following facts:

On February 3, 2018, [Corporal] Olayer of the Pennsylvania State

Police was on patrol traveling south on SR 18 in Big Beaver

Borough when he observed a red Dodge truck (PA Registration

#ZLB-7237) traveling below the 50 mph posted speed limit in the

right lane. [Corporal] Olayer also observed the vehicle cross the

right fog-line with its passenger side tires.

Following these observations, [Corporal] Olayer used the left lane

to pull up alongside the subject vehicle in order to ascertain

whether the driver was using a cellular device in violation of the

Motor Vehicle Code. After this observation revealed no violation of

the Motor Vehicle Code, [Corporal] Olayer followed the subject

vehicle as it turned west onto SR 551. As [Corporal] Olayer

followed a few cars behind, he observed the suspect vehicle turn

south onto 5th Avenue, and [Corporal] Olayer continued to follow.

Soon thereafter, [Corporal] Olayer observed the suspect vehicle

make a left turn onto 47th Street, pull over to the curb, and park.

Trial Court Opinion, 11/2/18 at 1-2 (footnote omitted). After his initial

observation that Appellant’s vehicle had crossed the fog line, Corporal Olayer

observed no other Motor Vehicle Code violations while following the vehicle as

it turned onto SR 551 through the time it was parked on 47th Street; Appellant

did not speed, employed proper signaling, stopped at all stop signs, and made

all turns safely and within his lane. Id. at 2 n.3.
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The trial court further found that after Appellant parked his pickup truck,

[Corporal] Olayer remained on 5th Ave. and continued to observe

the suspect vehicle. At the suppression hearing, [Corporal] Olayer

testified that the vehicle was parked and shut off, but the driver

remained in the vehicle for several minutes. Eventually,

[Appellant] exits his vehicle, walks across 47th Street and

[Corporal] Olayer observed him continue down an alleyway that

runs parallel to 5th Avenue. At this point, [Corporal] Olayer ran

the suspect vehicle's plates and noticed that the address where

the vehicle was registered was nowhere near the present location.

After [Corporal] Olayer parked his cruiser, he continued on foot

down an alley way that runs behind the Edgewater Inn and parallel

to the alley way [Appellant] walked down. As [Corporal] Olayer

neared the parking lot of the Edgewater Inn, he observed the

[Appellant] emerge from around a corner and walk towards the

Edgewater Inn. At this point, [Corporal] Olayer approaches the

[Appellant] and, “started making small talk with him[.]” Trial Court Opinion, 11/2/18 at 2 (footnotes omitted) (quoting suppression

hearing transcript). Corporal Olayer was in uniform when he approached

Appellant. Id. at 8; N.T. Suppression Hearing at 75. During the course of

this conversation, Corporal Olayer concluded that Appellant smelled of alcohol

and, shining a flashlight on Appellant, he observed that Appellant’s eyes were

bloodshot. Trial Court Opinion, 11/2/18 at 3-5, 10; N.T. Suppression Hearing

at 17.Corporal Olayer then asked Appellant to submit to field sobriety tests

and following the field sobriety tests, placed Appellant under arrest for DUI

and transported him to the state police barracks for a breath test. Trial Court

Opinion, 11/2/18 at 4-5; N.T. Suppression Hearing at 25; N.T. Trial at 23-24.
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The breath test showed that Appellant’s blood alcohol level was .132. N.T.

Trial at 6-9. The conversation during which Corporal Olayer concluded that Appellant

had been drinking alcohol was recorded by the dash cam of his cruiser and

the audio of that conversation was played at the suppression hearing. The

trial court found that this conversation transpired as follows:

OLAYER: How you doing today, sir?

[APPELLANT]: Pretty good. How are you?

OLAYER: Pretty good. You, you lost, or anything?

[APPELLANT]: Pardon me?

OLAYER: Are you lost?

[APPELLANT]: No. Why?

OLAYER: Just wondered where you were heading.

[APPELLANT]: Right here.

OLAYER: Okay

[APPELLANT]: [inaudible]

OLAYER: Wings?

[APPELLANT]: Yeah.

OLAYER: What kind of wings?

[APPELLANT]: Hot wings.

OLAYER: Okay. They have good wings here?

[APPELLANT]: Yeah
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OLAYER: Okay.

[APPELLANT]: Yeah, I know Jeff Gordon real well.

OLAYER: Who, Jeff Gordon?

[APPELLANT]: Yeah. He owns the place.

OLAYER: Okay. I just noticed you pulled in and everything, and

uh, you were from Butler and everything when you parked there,

and that's like, not your address on your license.

[APPELLANT]: No, I uh, I'm not from Butler. Portersville, well

actually New Castle.

OLAYER: Okay. You took kind of an odd way to get down here,

thought. You walked down that way when you could have just kept

coming on 18.

[APPELLANT]: Well, sometimes this parking lot is full, so I usually

park over there

OLAYER: You, you parked over there?

[APPELLANT]: Yeah, usually I pull right over there.

OLAYER: Okay. How much you have to drink tonight.

[APPELLANT]: Nothing, so far.

OLAYER: You sure, because I smell it on you.

[APPELLANT]: Well, I had a beer like an hour ago.

OLAYER: Okay.

[APPELLANT]: No. I'm not like, blasted.

OLAYER: No, I understand that, but you were driving a car and

your eyes are bloodshot and everything like that, and you kind of

ducked me there.

[APPELLANT]: [Inaudible]
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OLAYER: Well I understand that and everything, so what I'm going

to ask you to do now is go back to your vehicle and run some field

sobriety to make sure.

[APPELLANT]: Okay. . . Did I do something wrong?

OLAYER: What?

[APPELLANT]: Did I do something wrong?

OLAYER: No. I just happened to be walking along, I saw you get

out of that car, and I was walking down the street, and I like to

talk to people and everything like that, and I happened to smell

alcohol about you.

Trial Court Opinion, 11/2/18 at 3-5.

The trial court denied Appellant’s motion to suppress on November 2,

2018 on the ground that the conversation that Corporal Olayer had with

Appellant was a mere encounter that required no reasonable suspicion of any

crime up until Corporal Olayer requested that Appellant submit to field sobriety

tests. Following a nonjury trial, Appellant was convicted on May 24, 2019 of

DUI - high rate of alcohol, and was sentenced on July 31, 2019 to six months’

intermediate punishment. This timely appeal followed.

Appellant presents the following single issue for our review:

Whether the interaction between Defendant and the arresting

State Trooper was conducted in violation of the Fourth and

Fourteenth Amendments to the United States Constitution and

Article 1, §8 of the Pennsylvania Constitution so that the Court

erred in characterizing the interaction between the arresting State

Trooper as a “mere encounter” rather than an “investigative

detention” and thus improperly failed to suppress all evidence

obtained after the illegal detention of Defendant and thereafter

permitted such evidence to be admitted at the Non-Jury Trial.

Appellant’s Brief at 5.
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Our review in an appeal from the denial of a suppression motion is

limited to determining whether the lower court’s factual findings are supported

by the record and whether the legal conclusions drawn from those facts are

correct. Commonwealth v. Parker, 161 A.3d 357, 361 (Pa. Super. 2017).

Where the lower court’s factual findings are supported by the record, this

Court is bound by those findings and may reverse only if the lower court’s

legal conclusions are erroneous. Commonwealth v. Luczki, 212 A.3d 530,

541-42 (Pa. Super. 2019); Parker, 161 A.3d at 362. The lower court’s legal

conclusions, however, are not binding on an appellate court and are subject

to our plenary, de novo review. Commonwealth v. Adams, 205 A.3d 1195,

1199 (Pa. 2019); Parker, 161 A.3d at 362. The Fourth Amendment to the United States Constitution and Article 1,

Section 8 of the Pennsylvania Constitution protect individuals from

unreasonable seizures by government officials. Adams, 205 A.3d at 1199;

Parker, 161 A.3d at 362.

Not every encounter between a law enforcement officer and a

citizen constitutes a seizure warranting constitutional protections.

“Only when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen may

we conclude that a ‘seizure’ has occurred.”

Adams, 205 A.3d at 1199 (quoting Florida v. Bostick, 501 U.S. 429 (1991)).

A citizen, however, “may not be detained even momentarily without

reasonable, objective grounds for doing so.” Commonwealth v. Cost, 224

A.3d 641, 652 (Pa. 2020) (emphasis in original) (quoting Florida v. Royer,
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460 U.S. 491 (1983)); see also Adams, 205 A.3d at 1201 (“The Fourth

Amendment does not have a time limit; it protects individuals from

unreasonable seizures, no matter how brief”). There are three levels of interaction between police officers and citizens:

(1) a mere encounter, (2) an investigative detention, and (3) an arrest or

custodial detention. Adams, 205 A.3d at 1199-1200; Commonwealth v.

Young, 162 A.3d 524, 528 (Pa. Super. 2017); Parker, 161 A.3d at 362. An

interaction between a police officer and a private citizen is a mere encounter

where the citizen is under no compulsion to stop or respond to the officer and

is free to ignore the officer and continue on his way. Adams, 205 A.3d at

1199; Young, 162 A.3d at 528. Because the citizen is under no compulsion,

a mere encounter does not constitute a seizure, and need not be supported

by any suspicion of criminal activity. Adams, 205 A.3d at 1199; Young, 162

A.3d at 529.

In contrast, an investigative detention requires that the citizen

temporarily stop and respond to the officer’s requests. Adams, 205 A.3d at

1199-1200; Young, 162 A.3d at 528. An investigative detention therefore

constitutes a seizure and is constitutionally valid only if the officer has

reasonable suspicion that criminal activity is afoot. Adams, 205 A.3d at 1199- 1200; Parker, 161 A.3d at 362. The third category of interaction, arrest or

custodial detention, must be supported by probable cause. Adams, 205 A.3d

at 1200; Parker, 161 A.3d at 362. Whether an interaction between a private
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individual and a police officer is a mere encounter or a seizure is a question of

law. Young, 162 A.3d at 529.

Here the trial court did not find that Corporal Olayer had reasonable

suspicion of a crime at the time that he engaged Appellant in conversation or

that he had reasonable suspicion sufficient to support an investigative

detention during his questioning of Appellant until he asked Appellant whether

he had been drinking and commented that Appellant smelled of alcohol and

had bloodshot eyes. The critical question here therefore is whether the

officer’s questioning of Appellant up to that point was only a mere encounter

from which Appellant was free to walk away.

Where a police officer does nothing more than approach an individual in

a public place and briefly ask him questions, the interaction is ordinarily a

mere encounter that need not be supported by any suspicion of criminal

activity. Young, 162 A.3d at 529. “There is no constitutional provision that

prohibits police officers from approaching a citizen in public to make inquiries

of them.” Id. An interaction between an officer and a citizen is a detention,

rather than a mere encounter, however, where the police conduct would

communicate to a reasonable person that he was not free to ignore the police

inquiry and go about his business. Adams, 205 A.3d at 1200;

Commonwealth v. DeHart, 745 A.2d 633, 637 (Pa. Super. 2000). An

interaction that begins as a mere encounter may become an investigative
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detention if the police conduct becomes too intrusive. Young, 162 A.3d at

529; Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa. Super. 2000). The mere fact that a citizen ordinarily feels obligated to respond to a

police officer, without more, however, is not sufficient to make an interaction

a seizure. Commonwealth v. Mathis, 173 A.3d 699, 713 (Pa. 2017). [A]ll interactions with law enforcement may be viewed, to some

degree, as a show of authority to which people usually accede.

However, the free-to-leave test is not to be employed in such a

literal manner so as to require application of Fourth Amendment

exclusionary remedies to all police encounters. ... “Implicit in the

introduction of the [officer] and the initial questioning is a show of

authority to which the average person encountered will feel

obliged to stop and respond. Few will feel that they can walk away

or refuse to answer. ... [T]he confrontation is a seizure only if the

officer adds to those inherent pressures by engaging in conduct

significantly beyond that accepted in social intercourse.”

Id. (quoting Wayne R. LaFave, 4 SEARCH AND SEIZURE: A TREATISE ON THE

FOURTH AMENDMENT § 9.4(a) (5th ed. 2016))

Whether a reasonable person would have believed that he was not free

leave, making the interaction an investigative detention rather than a mere

encounter, must be determined from examining the totality of all the facts and

circumstances surrounding the interaction. Mathis, 173 A.3d at 712; Parker, 161 A.3d at 363. Factors to be considered in making this determination

include the number of police officers, whether there is physical contact, whether there is police direction of the subject’s movements, the demeanor

of the officer, the location and timing of the confrontation; and the content of
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the officer’s statements or questions. Mathis, 173 A.3d at 712; Parker, 161

A.3d at 363; Beasley, 761 A.2d at 624. Examination of these factors shows that the interaction in this case was

a mere encounter and remained a mere encounter and not a seizure up to the

time when Corporal Olayer asked Appellant to submit to field sobriety tests.

The interaction involved only one officer and there was no physical contact or

display of force beyond the fact that the officer was in uniform. There was

also no evidence that Corporal Olayer positioned himself so as to block

Appellant or did anything that could prevent Appellant from leaving.

Compare Cost, 224 A.3d at 652 (interaction was investigative detention

where officers retained defendant’s identification while they asked him

questions); Adams, 205 A.3d at 1200-01 (interaction was investigative

detention because officer prevented defendant from getting out of his car);

Commonwealth v. Hampton, 204 A.3d 452, 458 (Pa. Super. 2019)

(interaction was investigative detention where officer’s vehicle blocked

defendant from moving his vehicle); Parker, 161 A.3d at 361, 364

(interaction was investigative detention where two officers stopped defendant

by stationing their bicycles in front of him and suggested that defendant was

involved in criminal activity); DeHart, 745 A.2d at 636-38 (interaction was

investigative detention where two officers approached vehicle and positioned

themselves one on each side of the vehicle).
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Corporal Olayer, moreover, only conversed with Appellant and asked

him questions, and did not direct or order Appellant to do anything until after

he smelled alcohol on Appellant. Compare Commonwealth v. Singleton, 169 A.3d 79, 83 (Pa. Super. 2017) (interaction was mere encounter even

though two officers approached defendant late at night where officers only

asked him what was in his bag) with Beasley, 761 A.2d at 625 (mere

encounter became investigative detention when officer directed defendant to

pick up the backpack he had set down and bring it with him).

Because the evidence showed and the trial court found that Corporal

Olayer did nothing more than approach Appellant and ask him questions, this

interaction constituted a mere encounter, not a seizure, and did not violate

Appellant’s rights under the Fourth Amendment or Article 1, Section 8 of the

Pennsylvania Constitution. Accordingly, the trial court did not err in denying

Appellant’s motion to suppress. We therefore affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/18/2020
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