Commonwealth v. Cost, H., Aplt.

[J-70-2019]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 39 EAP 2018

:

Appellee : Appeal from the Order of the Superior

: Court entered on 6/11/18 at No. 1567

: EDA 2017 reversing the order entered

v. : on 4/20/17 and remanding to the Court

: of Common Pleas, Philadelphia County,

: Criminal Division at No. CP-51-CR-

HAROLD COST, : 0009310-2015

:

Appellant : ARGUED: September 11, 2019

OPINION

CHIEF JUSTICE SAYLOR DECIDED: January 22, 2020

In this case arising under the Fourth Amendment to the United States

Constitution, the issue accepted for review concerns the impact -- on the question

whether a seizure has occurred during a police-citizen encounter -- of an officer’s

retention of an individual’s identification card. The question distills to whether a

reasonable person would feel free to ignore the police presence and proceed about his

business while, amongst the other circumstances presented, the person is questioned

by police as an officer continues to hold his identification and conducts a warrant check.

Appellant was arrested for various firearms offenses and filed a motion to

suppress. At an ensuing hearing, the lead investigating officer initially explained that he

was patrolling a high crime area in Philadelphia in an unmarked vehicle at

approximately 9 p.m., when his partner observed Appellant and three other individuals

in an alley.1 The officer suspected “there might be something going on back there.”

N.T., April 20, 2017, at 7-8, 10 (expressing the concern that the individuals may have

been “gambling, you know, maybe smoking a little weed . . ..”). Thus, the policemen

circled the block and stopped the vehicle in front of the alleyway to conduct an

investigation. See id. at 11. According to the officer, he did not activate the vehicle’s

emergency sirens or lights. See id. at 13.

The officer further explained that, when he and his partner alighted from their

vehicle, he announced “police,” in particular, because the officers were in plain clothes.

Id. at 11, 26, 30, 53. He then asked the subjects if any of them “live back there,” to

which they replied in the negative. Id. at 10. Proceeding to ask if the individuals “had

ID,” the officer testified that all of them handed him identification cards of some sort. Id.

The officer then asked “was there anything -- you guys have anything on you I need to

know about,” to which they also said no. Id.

The officer testified that Appellant was removing a backpack, which prompted the

officer to ask, “you have anything in that backpack I need to know about?” Id. At that

point, Appellant admitted that he had a gun in the bag. See id. Subsequently, the

partner recovered a handgun.

Additionally, the officer related that he and his partner were in plain clothes, but

that an “outer carrier” displayed a badge number; they had law-enforcement necklace

medallion badges hanging from their necks; and they wore vests displaying a police

1 On direct examination, the officer testified that Appellant was accompanied by two

others. See, e.g., N.T., April 20, 2017, at 9-10. However, on cross-examination and

redirect, he indicated that there were three other individuals present, see id. at 42, 51-

52, and the suppression court accepted such evidence. See Commonwealth v. Cost,

CP-51-CR-0009310-2015, slip op. at 1 (C.P. Phila. July 10, 2017).

[J-70-2019] - 2

insignia on the backs. See id. at 12, 26. According to the officer, Appellant didn’t have

to answer questions or produce identification; rather, his path was unrestricted, and he

could have “walked off at any time.” Id. at 35, 50-51. The officer also affirmed that he

did not remove his service weapon from his holster or put his hand on the holster. See

id. at 11, 13. It was the officer’s testimony that the entire encounter, through the

question about the backpack, lasted less than a minute. See id. at 47.

On cross-examination, the officer related that he had not witnessed any criminal

activity. See id. at 20. Further, he engaged in the following discussion with defense

counsel concerning his posture:

Q. When you and your partner stopped this group of males,

one of you stands on the one side and one of you stand[s]

on the other in your field interview stance or some other

stance?

You know what I’m talking about, right?

A. Yes.

Q. Let me qualify that.

Officer, we can agree that a field interview stance, you’re

taught at the academy, blade your body, gun away from the

person that you receive as your threat when you interview

them to talk to them; is that fair?

A. Yes.

Id. at 31. Additionally, the officer confirmed that he did not specifically tell the four

subjects of the inquiries that they were free to leave. See id. at 31, 36.

The officer also clarified that he “ran [the] names” of the individuals through a

police dispatcher, and that “nothing came back bad.” Id. at 32. In this respect, he

elaborated:

[J-70-2019] - 3

I didn’t run their names until after we had -- we were doing

all of this simultaneously. I hadn’t asked them if they had

anything on them I need to know about first.

* * *

We have to run them over the air. We have to wait for the

dispatcher to respond. In the midst of all that, I still don’t

have clarification so, yes, I did ask them if they had anything

else on them.

32-33; see also id. at 47 (“[I]t’s all, like, a simultaneous thing.”).2

In a later interchange, the officer indicated that he had written down the

information from the identifications, but he did not specifically clarify when this had

occurred:

Q. . . . So when you say everything was written down,

either you or your partner were writing in your patrol car the

ID information they gave you; isn’t that right?

A. On a notepad or something, we jotted down everybody’s

name and date of birth that they gave, and their addresses.

Id. at 42.3

2 In tension with his suggestion that he ran the IDs, the officer later stated, “I don’t know

if I was running the person or if [the partner] was running the IDs.” Id. at 47-48.

3 The Commonwealth also presented testimony from the lead officer’s partner,

apparently for the limited purpose of evidencing that the officers had received a priority

radio call reporting that shots were fired several blocks from the location of the

encounter. See N.T., April 20, 2017, at 56. The primary testifying officer did not recall

any such radio call, however. See id. at 10.

The partner also testified that there had been a third officer present during the

encounter, albeit on cross-examination he acknowledged that there was no mention of

the radio call or a third officer in the arrest memorandum. See id. at 58. In the latter

regard, in argument to the suppression court, the district attorney said that the partner,

“I submit, is misremembering.” Id. at 68.

[J-70-2019] - 4

The suppression court awarded the exclusionary remedy at the conclusion of the

hearing, initially explaining as follows:

Here’s where I am: I think the officer’s okay up to the point

that I hear this one question: Anything in there that would

hurt me. That’s what you ask when the guy is under arrest.

You are going to go in there and now I’m going to do my

usual patdown for weapons. I don’t want to get stuck with a

needle. So when we get to that point, we’re way past

everything else.

We can ask for ID. . . . [T]he asking for ID is okay as long

as there’s nothing too authoritative which would cause

coercion, nothing the officer does to escalate the incident,

there’s no show of force, no weapons shown by the police or

blocking of exits, no induce[ment] of cooperation by way of

coercive means, and no curtailment of liberty.

You know, the cases we see is where he asked for IDs, the

guy puts -- goes in his pocket, does threatening gestures, or

some kind of [non]cooperation. I didn’t see any of that in this

case. Based upon that, I’ll grant the motion to suppress.

N.T., April 20, 2017, at 71-72.

The Commonwealth lodged an interlocutory appeal, and the suppression court

issued an opinion under Rule of Appellate Procedure 1925(a). Initially, the court

explained that warrantless searches are not permitted under the Fourth Amendment to

the United States Constitution unless conducted pursuant to a recognized exception to

the warrant requirement. See Cost, CP-51-CR-0009310-2015, slip op. at 2 (citing

Commonwealth v. Key, 789 A.2d 282, 287 (Pa. Super. 2001)).4 Further, the court

4 The suppression court grounded its ruling exclusively on the Fourth Amendment. See

Cost, CP-51-CR-0009310-2015, slip op. at 4. As such, and given that no claim has

been raised in this case that the Court should depart from Fourth Amendment

jurisprudence on state constitutional grounds, the assessment here has proceeded, and

will continue to proceed, under Fourth Amendment principles. Accord Commonwealth

v. Au, 615 Pa. 330, 341, 42 A.3d 1002, 1009 (2012) (“[T]hose litigants wishing to

(continued…)

[J-70-2019] - 5

observed that such exceptions include scenarios in which an individual consents to a

search during a mere encounter. See id. (citing Commonwealth v. Dunnavant, 63 A.3d

1252, 1257 n.3 (Pa. Super. 2013)). See generally Commonwealth v. Hicks, ___ Pa.

___, ___, 208 A.3d 916, 927 (2019) (distinguishing between a mere encounter and an

investigative detention). But, during any investigative detention, the court related, a

warrantless search must be supported by “a reasonable and articulable suspicion that

the person seized is engaged in criminal activity[.]” Cost, CP-51-CR-0009310-2015, slip

op. at 2 (quoting Commonwealth v. Strickler, 563 Pa. 47, 57, 757 A.2d 884, 889 (2000));

accord Hicks, ___ Pa. at ___, 208 A.3d at 932-33.

At the outset, the suppression court found that reasonable suspicion of criminal

behavior simply was not present and reiterated that Appellant and his companions had

fully cooperated with the officers. See Cost, CP-51-CR-0009310-2015, slip op. at 2.

Thus, the court then proceeded to analyze whether the interaction should be

characterized as a mere encounter or an investigative detention.

Along these lines, the suppression court explained that the threshold between

the two forms of police-citizen interactions is assessed according to whether,

considering all of the facts and circumstances surrounding the interaction, a reasonable

person would have thought that he was restrained. See id. at 3 (citing Commonwealth

v. Moyer, 954 A.2d 659, 664 (Pa. Super. 2008)); accord Hicks, ___ Pa. at ___, 208 A.3d

at 927. Additionally, the court highlighted that a totality-of-the-circumstances framework

governs, in that:

[a] court must examine “all surrounding circumstances

evidencing a show of authority or exercise of force, including

(…continued)

advance lines of departure, under Article I, Section 8, from Fourth Amendment doctrine,

must bring the matter into sharp focus in their advocacy.”).

[J-70-2019] - 6

the demeanor of the police officer, the manner of expression

used by the police officer, the manner of expression used by

the police in addressing the citizen, and the content of the

interrogatories or statements.”

Cost, CP-51-CR-0009310-2015, slip op. at 3 (quoting Commonwealth v. Mendenhall,

552 Pa. 484, 488, 715 A.2d 1117, 1119 (1998)).

Applying these standards, the court focused upon the following passage from the

testimony of the lead officer:

[The partner had] seen the males first. We circled. We

came back around. As we came back around to conduct our

investigation, the males were exiting the alleyway. Myself

and [the partner] exited the vehicle as the males were

coming out. I asked the males, any of you guys live back

there. They’re like no. I asked the males if they had ID,

which all three males handed me identifications. I then

asked the males, was there anything -- you guys have

anything on you I need to know about? They stated no.

The defendant was removing a backpack. I said, you have

anything in that backpack I need to know about? At which

point he stated he had a gun in the backpack.

Id. (quoting N.T., April 20, 2017, at 11).

Based on this evidence, the suppression court summarily reiterated “when [the

officer] asked [Appellant] about what was in the bag he was carrying, there was no

doubt that the stop had escalated into an investigative detention and such a question

was designed to potentially incriminate [Appellant].” Id.; see also id. at 4 (“The

interaction between [Appellant] and his companions and the police officers went beyond

a ‘mere encounter’ and was in fact an ‘investigative detention’ wherein [Appellant] was

asked an incriminating question under a coercive environment during which a

reasonable person would believe he was not free to go.”). Accordingly, and since the

court had previously found no reasonable suspicion of criminal activity, it reaffirmed that

the evidence deriving from the encounter should be excluded from trial. See id.

[J-70-2019] - 7

On Appellant’s appeal, the Superior Court reversed in a memorandum opinion,

relying extensively on Commonwealth v. Lyles, 626 Pa. 343, 97 A.3d 298 (2014).5

Initially, the majority quoted Lyles as confirming that an objective examination of the

totality of the circumstances is required. See id. at 350, 97 A.3d at 302 Further, the

court reiterated:

The totality-of-the-circumstances test is ultimately centered

on whether the suspect has in some way been restrained by

physical force or show of coercive authority. Under this test,

no single factor controls the ultimate conclusion as to

whether a seizure occurred -- to guide the inquiry, the United

States Supreme Court and this Court have employed an

objective test entailing a determination of whether a

reasonable person would have felt free to leave or otherwise

terminate the encounter. “[W]hat constitutes a restraint on

liberty prompting a person to conclude that he is not free to

‘leave’ will vary, not only with the particular police conduct,

but also with the setting in which the conduct occurs.”

Commonwealth v. Cost, No. 1567 EDA 2017, slip op. at 4, 2018 WL 2773251, at *2 (Pa.

Super. June 11, 2018) (quoting Lyles, 626 Pa. at 350-51, 97 A.3d at 302-03 (internal

citations omitted)).

In terms of the retention of the identification cards, the court additionally quoted

from Lyles as follows:

This Court and the United States Supreme Court have

repeatedly held that a seizure does not occur where officers

merely approach a person in public and question the

individual or request to see identification. Officers may

request identification or question an individual “so long as

the officers do not convey a message that compliance with

their requests is required.” Although police may request a

5Judge Ransom noted her dissent. See Commonwealth v. Cost, 1567 EDA 2017, slip

op. at 13, 2018 WL 2773251, at *6 (Pa. Super. June 11, 2018).

[J-70-2019] - 8

person’s identification, such individual still maintains “the

right to ignore the police and go about his business.”

Id. at 5, 2018 WL 2773251, at *3 (quoting Lyles, 626 Pa. at 351, 97 A.3d at 303 (internal

citations omitted)).

The majority proceeded to discuss Commonwealth v. Au, 615 Pa. 330, 42 A.3d

1002 (2012), a decision in which this Court held that an officer’s mere request for an

identification did not escalate a mere encounter into a seizure. See id. at 339-41, 42

A.3d at 1008.6 Again quoting from Lyles, the majority explained:

Au holds that, in assessing the totality of the circumstances,

a request for identification does not in and of itself elevate

what would otherwise be a mere encounter into an

investigative detention. Au’s limited premise is nothing new -

- it merely supported and reaffirmed well-settled principles

allowing officers to request identification without any level of

suspicion, and hold that a request alone does not constitute

an investigative detention or seizure. Notwithstanding that

general principle, an encounter involving a request for

identification could rise to a detention when coupled with

circumstances of restraint of liberty, physical force, show of

authority, conveying a demand for compliance or that there

will be a tangible consequence from a refusal.

That is, Au does not [ ] create a bright-line rule that requests

for identification never contribute to a detention analysis. Au

simply holds there is no opposite bright-line rule that such

requests automatically constitute detention. Although cases

involving similar or comparable seizure determinations may

serve as guideposts, a suppression court must

independently employ the totality-of-the-circumstances test

in determining whether a seizure occurred.

6 Justice Baer dissented in Au, joined by Justice Todd. See Au, 615 Pa. at 342-54, 42

A.3d at 1009-17 (Baer, J., dissenting). The dissenting position was substantially

premised on the circumstances involving “six young members of society sitting in a

parked car being investigated by a uniform police officer.” Id. at 348, 42 A.3d at 1013

(“The very confines of the vehicle, coupled with [the officer’s] interactions with the

occupants . . . in my view distinguishes the cases cited by the Majority.”).

[J-70-2019] - 9

Cost, 1567 EDA 2017, slip op. at 7, 2018 WL 2773251, at *3-4 (quoting Lyles, 626 Pa.

at 353-54, 97 A.3d at 304-05 (emphasis and interlineation in original)).

The majority then discussed the facts of Lyles, in which a majority of this Court

affirmed the reversal of a suppression ruling favorable to the defendant on the ground

that no seizure occurred after two officers approached two men sitting on the steps of a

vacant building, they asked them their reason for being there, and an officer requested

and held the defendant’s identification card during the interaction. See Lyles, 626 Pa. at

355-57, 97 A.3d at 305-07.7

The majority then delineated a non-exclusive list of factors relevant to

determining whether an officer’s encounter with a citizen rises to the level of an

investigative detention, along the lines of those referenced by the suppression court.

Turning to the facts of the present case, the majority stressed the non-coercive factors

and concluded that:

[t]here is no indication in the testimony presented at the

suppression hearing that the officers physically restrained

[Appellant] or his companions, or presented themselves in a

coercive or aggressive manner that “convey[ed] a demand

for compliance or [indicated] that there will be tangible

consequences for a refusal.” . . . The officers did not inform

the men they were suspected of any criminal activity, nor

does the record suggest their demeanor or tone of voice was

threatening. The officer posed innocuous questions to the

men while on a public street, and did not display their

weapons. Accordingly, under the totality of the

circumstance, we find the incident was a mere encounter.

Id. at 10, 2018 WL 2773251, at *5 (quoting Lyles, 626 Pa. at 353-54, 97 A.3d at 304).

7This author dissented in Lyles, joined by Justices Baer and Todd. See Lyles, 626 Pa.

at 357-61, 97 A.3d at 307-09 (Saylor, J., dissenting). The dissent emphasized, in

particular, that an officer had testified at the suppression hearing that the defendant had

been stopped and stated, in objective terms, that the defendant was not free to leave

while the officer was writing down information. See id. at 359, 97 A.3d at 308.

[J-70-2019] - 10

Next, the majority summarized Appellant’s position as emphasizing that the

officers had:

(1) positioned themselves “at the mouth of the alleyway in

the ‘interview stance’” as they questioned the men; (2)

admitted they were acting on pure speculation that there

“might be something going on” in the alley; and (3) continued

to question [Appellant] while they “retained control of [his]

identification.”

Id. at 10-11, 2018 WL 2773251, at *5 (quoting Brief for Appellee dated Jan. 31, 2018, in

Cost, 1567 EDA 2017, at 8, 13, 2018 WL 1518525, at 9, 13 (Pa. Super.)). According to

the majority, however, Appellant mischaracterized the evidence. First, the court

stressed that the suppression court did not make a factual finding that the officers

positioned themselves in a manner so as to block the alleyway or take an “interview

stance” to convey their authority. See id. at 11, 2018 WL 2773251, at *5. The majority

did accept that “there was testimony regarding this ‘interview stance’ during the

hearing,” but it opined nonetheless that the evidence “clearly was not significant to the

trial court’s ruling, as the court did not even mention it in its opinion.” Id.

Additionally, the majority explained that the fact that the officers may have been

acting based on speculation was irrelevant, given its view that the incident remained a

mere encounter at all relevant times. See id.

Finally, the majority observed that Appellant “makes much of the fact that the

officers continued to question him while they retained his identification, and ran a

background check.” Id. at 12, 2018 WL 2773251, at *6. In this regard, the majority

observed that Appellant emphasized the following passage from Lyles:

Moreover, we do not find the officer’s brief recording of the

card’s information raised the encounter to an investigative

detention. Quickly jotting down the information, as opposed

to attempting to memorize did not restrain [the] appellant’s

freedom of movement. The officer did not question [the]

[J-70-2019] - 11

appellant further while he was holding the identification, and

he did not use [the] appellant’s information to run a

background check. He took no additional steps that would

suggest detention or restrict [the] appellant’s freedom of

movement. What delayed this interaction was not the

officer’s writing but [the] appellant’s worrisome refusal to

keep his hands in sight.

Id. (quoting Lyles, 626 Pa. at 356-57, 97 A.3d at 306-07 (footnote omitted)).

The majority, however, characterized this passage from Lyles as dicta and

opined that it was “not controlling under the facts of the present case.” Id. In this

regard, the panel highlighted the testimony that the encounter lasted less than one

minute and indicated: “[w]hile 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

[Appellant] had anything in his backpack.” Id. The majority then restated its position

that “there was no coercive atmosphere or implied demand for compliance ‘beyond the

officers’ mere employment.’” Id. at 12, 2018 WL 2773251, at *6 (quoting Lyles, 626 Pa.

at 353-54, 97 A.3d at 304).

This Court allowed appeal on a limited basis to address:

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?

Commonwealth v. Cost, ___ Pa. ___, 198 A.3d 1047 (2018) (per curiam).

Appellant maintains that retaining an identification card to conduct a background

check during the course of further interrogation should weigh substantially in favor of a

determination that a mere encounter has escalated into a seizure. He criticizes the

Superior Court for “completely discount[ing]” these factors. Brief for Appellant at 12.

[J-70-2019] - 12

Furthermore, according to Appellant, “the panel majority employed Lyles as a bright-line

rule in the exact manner repudiated by this Court in that very case.” Id. at 52. It is

Appellant’s central position that, “[r]etention of an identification to run a background

check signals to a person that officers are looking for evidence of criminal activity, and

are implicitly commanding that person to remain on the scene while they do so.” Id. at

14. In this fashion, while he maintains the Court should recognize as a “general rule”

that persons in these circumstances will not reasonably feel free to terminate the

encounter, id. at 54, Appellant stops short of advocating in favor of a per se approach.8

An extensive discussion of cases from other jurisdictions is presented in Appellant’s

brief. See, e.g., id. at 42-51.

With reference to the officer’s questions to Appellant and his companions,

Appellant explains that:

A “need to know” request is not the same as a simple

question. It implies that the officer has a right to know the

answer; i.e. that the officer has the right to conduct a search.

A common understanding of a person on the street would be

that non-cooperation is not an option. When used as an

adjective the phrase “need to know” means “done or given

only when it is essential that someone knows something.”

Collins English Dictionary, online. As a verb phrase,

however, it retains the connotation that what is requested is

8 Significantly, Appellant repeatedly recognizes the governing totality-of-the-

circumstances test, “with no single factor dictating the ultimate conclusion as to whether

a seizure has occurred.” Brief for Appellant at 20-21 (quoting Commonwealth v.

Livingstone, 644 Pa. 27, 47, 174 A.3d 609, 621 (2017) (citation omitted)); accord, e.g.,

id. at 21 (“The United States Supreme Court has explained its admonition that there is

no ‘litmus-paper test for distinguishing a consensual encounter from a seizure[.]’” (citing

Florida v. Royer, 460 U.S. 491, 506, 103 S. Ct. 1319, 1329 (1983) (plurality))). See

generally Ohio v. Robinette, 519 U.S. 33, 34, 117 S. Ct. 417, 419 (1996) (explaining

that, in applying the totality-of-the-circumstances test, “the Court has consistently

eschewed bright-line rules, instead emphasizing the fact-specific nature of the

reasonableness inquiry”).

[J-70-2019] - 13

“essential.” Thus here the officer could be understood to

have said, “I must have it.”

Id. at 18 n.4.

Regardless of Appellant’s many assertions to the contrary, the Commonwealth

characterizes his effort as an attempt to establish a per se rule. See Brief for Appellee

at 6-7 (“To adopt a per se rule that police may never ask for identification and therefore

ask questions that arise from it or other circumstances of the encounter, would put form

over substance, and fail to appreciate the realities of police work.”). According to the

Commonwealth, there is nothing in the totality of the circumstances presented that

would suggest that Appellant would not have felt free to leave.

The Commonwealth also takes issue with Appellant’s reliance on the asserted

retention of his identification, arguing that there is no evidence of record that either of

the investigating officers ever walked away from him while in possession of his

identification. See Brief for Appellee at 4 n.2; see also id. at 23. Furthermore, the

Commonwealth asserts:

Although [the lead officer] testified the either he or [the

detective] had ‘run’ [Appellant’s] name over their radio

system, [the suppression court] did not make a factual

finding that [Appellant’s] identification had been retained for

purposes of running a “background check.” Instead, [the

suppression court’s] ruling was based on [the lead officer’s]

asking questions.

Id. at 5 n.4; see also id. at 22.

Initially, to the degree that the Commonwealth relies on the dearth of record

evidence that Appellant’s license was retained while an officer went to the police vehicle

and consulted with a dispatcher, we reject this position. In this regard, the burden

rested upon the Commonwealth to supply the evidence justifying a warrantless search,

see Commonwealth v. Crompton, 545 Pa. 586, 592, 682 A.2d 286, 288 (1996); accord

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Pa.R.Crim.P. 581(H); and certainly if the officers had returned the identification cards to

Appellant and his companions immediately, the prosecutor could have made that fact

known. Moreover, the record of a suppression hearing is to be read in the light most

favorable to the prevailing party, here, Appellant. See, e.g., Commonwealth v. Worthy,

598 Pa. 470, 477, 957 A.2d 720, 724 (2008). Thus, while it would have been greatly

preferable for the evidence to have been better developed and for the suppression court

to have made closer findings concerning the range of relevant factors, the record

sufficiently supports an inference that Appellant’s identification was retained while an

officer “ran [the] names.” N.T., April 20, 2017, at 32.9

Turning to the broader frame, the governing principles are well settled and have

been discussed, rather exhaustively, in many of this Court’s decisions. See, e.g., Hicks,

___ Pa. at ___, 208 A.3d at 924-28. As developed above, the “free-to-leave” standard

presents the central inquiry of whether, considering the totality of the circumstances, the

relevant police conduct would have “communicated to a reasonable person that he was

not at liberty to ignore the police presence and go about his business.” Florida v.

Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2387 (1991) (quoting Michigan v.

9 Similarly, to the extent that the Commonwealth is suggesting that the assertion that an

officer “ran [the] names” of individuals does not signify a background check, or a review

for outstanding warrants, we reject the suggestion.

Parenthetically, we note that the sparseness of the present record in material respects

is not an isolated problem. Accord State v. Martin, 79 So.3d 951, 959 (La. 2011)

(“Reviewing the totality of the circumstances here, we are confronted with the reality

that the scant record leaves many questions unanswered.”). In such scenarios, counsel

risk that their clients’ (or, in this case, the government’s) interests may turn, to a

substantial degree, on the initial allocation of the burden of proof and the light in which

the record is reviewed on appeal based on which party has prevailed upon the initial

suppression ruling.

[J-70-2019] - 15

Chesternut, 486 U.S. 567, 569, 108 S. Ct. 1975, 1977 (1988)); accord Hicks, ___ Pa. at

___, 208 A.3d at 927.10

Most jurisdictions agree that an officer’s mere request for identification does not,

by itself, transform what would otherwise be a mere encounter into an investigatory

detention. See Au, 615 Pa. at 341, 42 A.3d at 1009; accord, e.g., United States v.

Lopez, 443 F.3d 1280, 1285 (10th Cir. 2006) (citing Mendenhall, 446 U.S. at 555, 100

S. Ct. at 1877); State v. Pollman, 190 P.3d 234, 240 (Kan. 2008) (collecting cases).

However, jurisdictions are deeply divided concerning whether, or to what degree, the

retention, by an officer, of the identification documents to search for outstanding

warrants escalates the encounter to a seizure. Compare, e.g., United States v. Jordan,

958 F.2d 1085, 1087 (D.C. Cir. 1992) (“[O]nce the identification is handed over to police

and they have had a reasonable opportunity to review it, if the identification is not

returned to the detainee [it is] difficult to imagine that any reasonable person would feel

free to leave without it.”), with United States v. Weaver, 282 F.3d 302, 312 (4th Cir.

2002) (“While it is without question that a driver’s license is one of the most valuable

pieces of personal identification possessed by any citizen, it does not logically follow

that any time an officer retains someone’s driver’s license that such retention blossoms

into an unconstitutional seizure[.]”). See generally Note, Aidan Taft Grano, Casual or

Coercive? Retention of Identification in Police-Citizen Encounters, 113 COLUM. L. REV.

1283, 1296-1306 (2013) (collecting cases).

Decisions tending toward a per se approach “have noted the impractical and

unrealistic option of a reasonable person in modern society to abandon one’s

10As indicated in Livingstone, the reasonable person test refers to a reasonable person

innocent of any crime. See id. at 48, 174 A.3d at 621 (citing Commonwealth v. Jones,

474 Pa. 364, 373, 378 A.2d 835, 840 (1977) (citation omitted)); accord Bostick, 501

U.S. at 438, 111 S. Ct. at 2388.

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identification, as an individual is practically immobilized without adequate identification.”

Martin, 79 So.3d at 957 (citing United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir.

1995), Jordan, 958 F.2d at 1087, and State v. Daniel, 12 S.W.3d 420, 427 (Tenn.

2000)); see also U.S. v. Washington, 992 F. Supp. 2d 789, 793 (N.D. Ohio 2014)

(characterizing an officer’s retention of a driver’s license as a “virtual leash”).

Determinations in the opposing camp tend to stress the tolerance accorded by the

Supreme Court of the United States for pressures inherent in police-citizen encounters

and conclude that a brief retention of an identification card does not, in and of itself,

alter the nature of an otherwise voluntary encounter. See Martin, 79 So.3d at 958, 960;

accord Weaver, 282 F.3d at 310-13.

As noted, this case does not call for us to consider the adoption of a bright-line

rule. See supra note 8. We do agree with Appellant, however, that the retention by

police of an identification card to conduct a warrant check will generally be a material

and substantial escalating factor within the totality assessment. In this regard, our

sentiments tend toward the following analysis by the District of Columbia Court of

Appeals:

[A]n officer’s decision to run a check for outstanding

warrants can be a pivotal event in [an otherwise consensual

street] encounter; it sends a strong signal to a reasonable

person that the officer will not allow him to leave while the

inquiry is in progress precisely because the outcome of the

inquiry may necessitate the person’s detention. The trial

judge discounted the importance of the warrant check in this

case because it did not prolong [the] appellant’s encounter

with police, but that misses its true significance. However

long the warrant check took, while it was under way it

conveyed a message that [the] appellant’s liberty was being

restrained. The critical point here is that the warrant check

was still under way, its results not yet known, when [the

investigating officer] asked for [the] appellant’s [personal

effect].

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Jones v. U.S., 154 A.3d 591, 597 (D.C. 2017).11

Coupled with other relevant factors in the case, we conclude that the officer’s or

his partner’s retention of Appellant’s identification card to conduct a warrant check -- as

he was asked if there was anything in his backpack that the officer needed to know

about -- was sufficient to signify to a reasonable person that he was not free to proceed

about his business. Accord Pollman, 190 P.3d at 240 (“[I]f a law enforcement officer

retains a driver’s license, this can be a factor considered in the totality of the

circumstances and may, absent offsetting circumstances, mean a reasonable person

would not feel free to leave without his or her license.” (emphasis added)). The

announcement of “police,” while perfectly understandable, was an initial escalating

factor. Albeit that the testimony on the point is quite scant, viewing the record in the

light most favorable to Appellant, it can be concluded that the officers (also quite

rationally) adopted a stance that would convey to a reasonable person that such person

is perceived as a potential threat. Additionally, we agree with Appellant that repeated

queries whether there is anything that a police officer “need[s] to know” about within a

person’s possessions suggests some authoritative right to know about the contents.

It is also significant, in our judgment, that there is no evidence that the officer

ever explained to Appellant what he intended to do with the identification card. Rather,

from all appearances, once Appellant gave it to the officer, the officer simply proceeded

11 We express a modest degree of circumspection here concerning only the degree of

coerciveness involved, since, under Fourth Amendment jurisprudence, the relevant

perspective is from that of a reasonable innocent person, see supra note 10, and

presumably such a person would know that he has no outstanding warrants.

Nevertheless, the person would also be aware that the officer has no way of knowing

this prior to the warrant check, and as a consequence, he would likely conclude that

departure while the check was in progress would be problematic.

[J-70-2019] - 18

to do with it as he wished. Again, such treatment of another’s property is a substantial

escalating factor in terms of the assertion of authority.12

As to the brief time during which the evidence suggests that an officer retained

Appellant’s identification card, the relevant decisional law has made clear that citizens

“may not be detained even momentarily without reasonable, objective grounds for doing

so.” Royer, 460 U.S. at 498, 103 S. Ct. at 1324 (emphasis added).13 Accordingly, the

most important factor, relative to timing, is that the record -- read most favorably to

Appellant -- adequately supports an inference that an officer continued to hold

Appellant’s identification card at the time of the questioning. Accord Jones, 154 A.3d at

597.14

Finally, both Appellant and the Commonwealth offer policy arguments in support

of their respective positions. Were this Court in a position of a policymaker relative to

Fourth Amendment law, we might perhaps come to a different reconciliation of the

competing interests and application of the overarching principles. Cf. Au, 615 Pa. at

12 Certainly, the Commonwealth is correct that there are a number of factors present in

this case that would not escalate the interaction beyond a mere encounter. To the

degree that those factors represent manifestations of the officers’ authority, however,

they nevertheless retain relevance. Accord Jones, 154 A.3d at 595-96.

13 Although Royer was a plurality decision, this point is widely affirmed by federal and

state courts.

14 Given the fact-specific nature of these cases, we do not find it useful to return to Lyles

for comparison. Notably, the difference between the majority and the dissent there

centered on particularized testimony by the investigating officer that he had, in fact,

stopped the defendant and that the defendant was not free to leave during the

interaction. See supra note 7. Neither of those circumstances is present here.

Nevertheless, we do credit Appellant’s argument that the Lyles Court itself suggested

that retention of an identification card to conduct a warrant check would be an

escalating factor. See Lyles, 626 Pa. at 356-57, 97 A.3d at 306-07.

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338-39, 42 A.3d at 1007-08 (recognizing conceptual difficulties inherent in the free-to-

leave standard as interpreted by the Supreme Court of the United States); Golphin v.

State, 945 So.2d 1174, 1190 (Fla. 2006) (“In interpreting the scope of the Fourth

Amendment, courts appear to have steadily increased expectations that the ‘reasonable

person’ is one who not only knows the full extent of his rights, but zealously protects

them to the point that he will not hesitate to confront authority and demand the return of

identification so that he may effect his right to walk away.”). Instead, as in Au, we are

simply applying a standard devised and enforced by the Supreme Court of the United

States, which is the final interpreter of the United States Constitution. While we realize

that there are solemn consequences of these applications in terms of both the

maintenance of individual liberties and the vindication of important law enforcement

concerns, our obligation in this arena is simply to do our best to adhere to the federal

mandates. Accord Au, 615 Pa. at 338-41, 42 A.3d at 1007-09.

Although the question of whether Appellant was subject to an investigative

detention at the relevant time is a close one under governing Fourth Amendment law,

accord Jones, 154 A.3d at 598, we hold, as found by the suppression court, that he was

indeed seized.

The order of the Superior Court is reversed.

Justices Baer, Todd and Dougherty join the opinion.

Justice Wecht files a concurring opinion in which Justice Donohue joins.

Justice Mundy files a dissenting opinion.

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