Police Identity Questioning…Just a Mere Encounter..No 4th Amend. Search

Our Superior Court, in Commonwealth v. McAdoo, 2012 PA Super 118 (Pa. Super. Ct. 2012) at the instruction of the Pennsylvania Supreme Court in Commonwealth v. Au, ___ A.3d ___ , 2012 Pa. LEXIS 982, 2012 WL 1434844 (Pa. filed April 26, 2012), has begun to severely curtail the rights our citizens have to stop any police investigation. In determining whether a Commonwealth Citizen was subjected to an investigative detention by police, the courts have utilized a complex guide in 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-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred.Id. (quoting Commonwealth v. Coleman, 2011 PA Super 84, 19 A.3d 1111, 1116 (Pa. Super. 2011)).

Superior Court, in Commonwealth v. Au, 2009 PA Super 231, 986 A.2d 864 (Pa. Super. 2009) (en banc) found that an officer’s request for identification from a group of teenagers constituted an investigative detention unsupported by reasonable suspicion. In Au, an officer on routine patrol after midnight observed an automobile parked in the lot of a local business, which had closed several hours earlier. The officer decided to see if the vehicle’s occupants needed assistance as it was unusual to see a car in the lot at such a late hour. Without activating his emergency lights, the officer parked his vehicle so that his headlights illuminated the passenger side of the vehicle. The Supreme Court reversed this decision.

The facts in Au were simple. When the officer approached the parked vehicle with a flashlight, the passenger rolled down his window. The officer asked the passenger (later determined to be Au) what was “going on” and Au responded that he was just hanging out with a group of friends. After the officer noticed six young-looking teenagers seated in the car, he asked if everyone was 18 years old. When some of the occupants responded in the negative, the officer requested identification from the vehicle’s occupants. When Au opened up the car’s glove compartment, the officer saw two baggies of marijuana. The officer went to the other side of the car and noticed drugs on the driver’s side as well. Au subsequently charged with possession of marijuana. Prior to his trial, Au filed a motion to suppress the evidence confiscated from the vehicle, which the trial court subsequently granted. A three-judge panel of this Court affirmed on appeal.
After Au’s petition for reargument was granted, a sharply divided 5-4 en banc panel of this Court affirmed the trial court’s decision to suppress the evidence obtained from this encounter, which it deemed an investigatory detention from the point the officer asked the vehicle’s occupants for identification. Id. at 867. The majority felt that a reasonable person would not have felt free to terminate this encounter, given that a uniformed officer directed his cruiser’s headlights at the vehicle, approached and asked the teens to explain why they were at this location, and asked for identification after he was seemingly “unsatisfied” with the occupants’ response to his inquiry. Id.

The dissent pointed to Pennsylvania Supreme Court precedent in which our High Court concluded that police officers’ requests for citizens’ identification did not amount to unlawful seizures, but remained mere encounters. Au, 986 A.2d at 871 (citing Commonwealth v. Smith, 575 Pa. 203, 217, 836 A.2d 5, 13-14 (2003); Commonwealth v. Dowds, 563 Pa. 377, 387, 761 A.2d 1125, 1130 (2000); Commonwealth v. Boswell, 554 Pa. 275, 284, 721 A.2d 336, 340 (1998)).

The Pennsylvania Supreme Court recently reversed the Au majority’s holding and adopted the analysis contained in Judge Shogan’s dissent. Commonwealth v. Au, ___ A.3d ___, 2012 Pa. LEXIS 982, 2012 WL 1434844, at *5 (Pa. filed April 26, 2012). Guided by the decision of the United States Supreme Court in Hiibel, our state Supreme Court held that “a request for identification is not to be regarded as escalatory in terms of the coercive aspects of a police-citizen encounter.” Id. The Supreme Court found the officer’s request for information did not constitute an illegal investigatory detention when the officer did not “activate the emergency lights on his vehicle, position his vehicle as to block the car that [Au] was seated in from exiting the parking lot, brandish his weapon, make an intimidating movement or overwhelming show of force, make a threat or a command, or speak in an authoritative tone.” 2012 Pa. LEXIS 982, [WL] at *5-6. As the officer’s interaction with Au was a mere encounter requiring no level of suspicion, the Supreme Court held the evidence should not have been suppressed.
As the officer’s interaction with Appellant did not rise above a mere encounter, the officer was free to ask Appellant for his name without implicating the Fourth Amendment. Accordingly, the trial court did not err in refusing to suppress the evidence obtained upon Appellant’s arrest. We affirm Appellant’s judgment of sentence. Commonwealth v. McAdoo, 2012 PA Super 118 (Pa. Super. Ct. 2012)

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