PA Superior Court: Ordering Driver to Roll Window Down Is A Stop
Philadelphia Criminal Lawyer Zak Goldstein
Can the police make you roll down your car windows?
For years, Pennsylvania appellate courts have had some difficulty in defining the point at which a person is seized by police for Fourth Amendment purposes, finding in some cases that even where police clearly restrict a person’s movement, they may not be stopped. More recently, however, the Supreme and Superior Courts of Pennsylvania have issued a number of important cases which reflect the obvious fact that when the police tell you what to do, you are not free to leave. The Superior Court has now decided the case of Commonwealth v. Powell, holding that when police officers surround a legally parked vehicle and order the driver to roll down his window, the interaction is an investigatory detention (a stop) and not a mere encounter. This is important because in order to win a motion to suppress, a defendant has to show not only that the police acted without reasonable suspicion or probable cause, but also that they actually seized the defendant in some way. Police are free to walk up to any person and initiate a conversation without any level of suspicion. But once they start issuing commands, the situation changes dramatically and police are required to have reasonable suspicion or probable cause.
Commonwealth v. Powell
On April 27, 2018, an Edinboro, PA Police Officer was on duty in an unmarked police car along with a sheriff’s deputy. Both men were in uniform. At approximately 11:37 PM, the officer noticed a truck parked in the small public parking lot of the Lakeside Commons shopping mall. There were no stores open at the time. The truck’s engine was running, and the truck was legally parked. The officer testified that he normally patrols the lot, and in the past he has observed criminal activity in the lot such as drinking, drugs, and lewdness.
The officer testified that he pulled his vehicle directly behind the passenger side of the truck and he did not activate his lights. The officer and the deputy exited their vehicle and approached the defendant’s driver side and passenger side windows respectively. Prior to approaching the vehicle, the officer had not received any complaints about the defendant’s vehicle, nor had he observed any bad driving or suspicious behavior. When the officer and the deputy walked up to the defendant’s windows, the windows were closed. The officer observed the defendant in the truck eating food from Taco Bell, and the officer knew that there was a taco bell nearby.
The officer then ordered the defendant to roll his window down and observed the defendant with glassy eyes and a strong smell of alcohol coming from his person. The officer then asked the defendant for identification. Shortly after this request, the officer asked that the defendant perform sobriety tests. The defendant failed these tests and he was subsequently arrested for DUI.
The defendant then filed a motion to suppress all evidence that was obtained after his illegal detention. At his motion to suppress, the above stated facts were presented, and the trial court agreed that the defendant was illegally detained and consequently granted his motion. Specifically, the court found that no reasonable person would have believed that he was free to leave the encounter with the police. The Commonwealth then filed a timely interlocutory appeal. On appeal, the Commonwealth argued that the interaction between the defendant and the officers was just a mere encounter and thus he was not illegally seized.
What is a Mere Encounter?
When a defendant argues a motion to suppress, the Commonwealth will frequently suggest that the motion should be denied because the interaction between the defendant and the police was just a “mere encounter.” Mere encounters are considered to be routine interactions between citizens and police. They do not require any level of suspicion and do not involve any official compulsion by the police. Additionally, a mere encounter is considered consensual, and thus a citizen is allowed to terminate this interaction whenever he or she so chooses. It is important to note that just because an officer asks for identification, it does not necessarily escalate a mere encounter into an investigatory detention. The crucial factor in determining whether the mere encounter has evolved into an investigatory stop (or an arrest) is whether the individual would have reasonably felt free to terminate the interaction between himself and the police. In other words, if a reasonable person would not have felt free to end the encounter, then it is not a mere encounter. The reason this significant is because the police need reasonable articulable suspicion that a defendant is engaged in criminal activity before they can stop them for an investigatory detention.
As such, when a defense attorney litigates a motion to suppress, they are often trying to elicit facts to suggest that a reasonable person would not have felt free to leave. Often times this involves soliciting facts such as: the placement of the officers, what they were wearing, whether their weapons were visible, how many officers were involved, the tone of questioning, whether they touched the defendant, whether he was in handcuffs, etc. At the conclusion of the hearing, the defense attorney will then argue that based on the facts of the particular case this was not a mere encounter, bur rather an investigatory detention and therefore the police needed reasonable suspicion to stop him in the first place.
The Superior Court’s Decision
The Superior Court affirmed the trial court’s order granting the defendant’s motion to suppress. In its opinion, the trial court found several factors that escalated the interaction from a mere encounter to an investigatory detention. Specifically, the Superior Court found that the officers positioning themselves on both sides of the defendant’s vehicle and ordering him to roll his window down showed that this was not a mere encounter. Because the defendant was legally parked and not doing anything illegal, the officers lacked reasonable suspicion to stop him. Therefore, the Commonwealth will not able to use any of the evidence it obtained after illegally stopping the defendant in his trial, and the DUI charges should be dismissed.
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Read the Superior Court’s Opinion
