Reasonable suspicion to re-initiate investigative detention after initial traffic stop; totality of circumstances versus independent basis to re-initiate
Police officer observed appellant’s erratic driving, ran a check on the vehicle’s license and determined the registration was expired, and conducted a stop. Although the officer noted that appellant, a minor, was sluggish in her movements and that when he returned to his cruiser to write a citation for the expired registration he observed what appeared to be furtive movements on the part of the driver’s passenger, and an odor of marijuana in the vehicle when he returned the appellant’s documents and handed her the citation, he told her she was free to go. After he returned to his cruiser, but before the appellant drove away from the scene of the stop, the officer returned to the stopped vehicle, asked if there was anything illegal in the car that he should know about. The passenger said “no” and then asked if the officer wanted to search the vehicle, and a search ensued during which the passenger voluntarily stated that there was a marijuana pipe in the car and that the two of them had smoked marijuana prior to driving. Appellant failed a field sobriety test and thereafter a delinquency petition was filed alleging that she committed the delinquent acts of DUI – Impaired Ability, Unlawful Possession of a Controlled Substance, Unlawful Possession of Drug Paraphernalia, Disregard of Traffic Lanes, and Driving Unregistered Vehicle. Appellant filed a suppression motion which the trial court denied. After adjudication, she was placed on probation and her driver’s license was suspended for one year.
In her appeal challenging denial of the suppression motion, Appellant argued that the re-initiation of contact with her after she was told she was free to leave amounted to a second investigative detention, and that the officer lacked reasonable suspicion to justify that second detention. Superior Court affirmed, agreeing with Appellant that the re-initiation of contact amounted to a second investigative detention, but rejecting the claim that the officer lacked reasonable suspicion to justify that second detention. In reaching its conclusion Superior Court applied the reasoning of Commonwealth v. Kemp, 961 A.2d 1247 (Pa. Super. 2008) (en banc), and distinguished the factually similar three judge panel decision in Commonwealth v. Nguyen, 116 A.3d 657 (Pa. Super. 2015).
In Kemp, a state trooper stopped a vehicle in which Kemp was a passenger. During the stop, the trooper made various observations that, based on his experience, led him to suspect that Kemp and the driver were trafficking narcotics. At several points throughout the interaction, the trooper told the driver and/or Kemp that they were free to leave, but then re-initiated contact and questioned them. Ultimately, after one such reengagement, Kemp gave the trooper consent to search the car, which revealed a large quantity of marijuana in the trunk. Kemp, 961 A.2d at 1250-1252. Kemp used a “totality of circumstances” approach to assess reasonable suspicion:
A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). “This standard, less stringent than probable cause, is commonly known as reasonable suspicion.” Id. In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In re D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (2001). In making this determination, we must give “due weight … to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, “even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Cook, 735 A.2d at 676.
Kemp, 961 A.2d at 1255 (quoting Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004)).
In Nguyen, however, the Superior Court panel, without citing the en banc decision in Kemp, stated that “[w]here the investigative detention at issue follows a lawful traffic stop, the officer must demonstrate cause for suspicion after the end of the initial stop, and independent of any basis on which he conducted the prior stop.” Id. at 668 (quoting Jones, 874 A.2d at 117).
Applying Kemp and distinguishing Nguyen, Superior Court reasoned:
Kemp explicitly precludes this Court from applying the type of limited reasonable suspicion analysis that Appellant advocates. Instead, in situations where an officer ends a lawful traffic stop, but then re-initiates an investigative detention of an occupant of that vehicle, we apply the ‘totality of the circumstances’ test to assess whether the officer possessed reasonable suspicion. See Kemp, 961 A.2d at 1260. Under that test, the officer’s reasonable suspicion to conduct the subsequent detention may be premised on facts gathered during the valid traffic stop, id. at 1258, although the officer cannot solely rely “upon the initial traffic violation to prolong the detention; they need other information supporting reasonable suspicion.” Id. at 1260 (clarifying our Supreme Court’s holding in Freeman).
Slip op. at 12 (footnote omitted).
The Supreme Court has granted allocatur to address the issue as stated by petitioner:
Whether the Superior Court’s reliance on Commonwealth v. Kemp to affirm the trial Court’s denial of Petitioner’s Motion to Suppress Evidence was in contradiction with the recent holding of a different Superior Court Panel, Commonwealth v. Nguyen?