Suppression of evidence: when does a mere encounter end and an investigative detention begin?

Com. v. Cost, 2018 WL 4472911 (Pa. Super. 2018) (unreported), allocatur granted Dec. 4, 2018, appeal docket 39 EAP 2018.

Cost and three other men were in an alleyway when two police officers approached them and asked for identification. As the men complied, Cost began to remove a backpack from his shoulder and an officer asked if there was something he should know about. Cost then informed the officer that there was a gun. Cost was arrested and charged with three firearms offenses. The trial court granted a motion to suppress the firearm, concluding it was the product of an unlawful seizure. On appeal, the Superior Court reversed the findings of the trial court, reasoning that the totality of the circumstances and request for identification, absent a demand or manifestation of authority, was not per se coercive, and denied applying the dicta in Commonwealth v. Lyles, 97 A.3d 298 (Pa. 2014), that the officer didn’t further question the person while he was holding their identification or use it to run a background check. The Superior Court found:

We find, however, this dicta in Lyles is not controlling under the facts of the present case. Here, Officer Agront testified the entire encounter lasted less than one minute. While one officer checked the men’s identifications, the other simply asked if they had anything on them the officers needed to know about, and if Cost had anything in his backpack. As noted above, there was no coercive atmosphere or implied demand for compliance ‘beyond the officers’ mere employment.’ Therefore, we find the encounter did not elevate to an investigatory detention and unlawful seizure.

Accordingly, because we conclude the trial court erred in determining the police interaction with Cost constituted a seizure an in suppressing the firearm recovered from his backpack, we reverse the order on appeal.

Slip Op. at 12-13.

The Supreme Court has granted allocatur to address whether the application of Lyles turns a mere encounter into an investigative detention when two officers control identification for a background check and continue to ask questions. The Supreme Court will decide the following issue, as stated by the petitioner:

Did not the Superior Court panel misapply and expand this Court’s decision in Commonwealth v. Lyles, 97 A.3d 298 (Pa. 2014), in reversing the grant of suppression by the trial court, because where two officers retain control of a person’s identification in order to run a background check while continuing to question him about his possessions, the interaction is escalated from a mere encounter to an investigative detention?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.