In Commonwealth v. Cost, 2020 WL 354975, the Pennsylvania Supreme Court addressed the question of whether a reasonable person should feel free to ignore police presence and proceed about his business when being questioned by police after an officer takes and holds his identification and conducts a warrant check. It concluded he should not. As a result, the detention was illegal and evidence seized as a result is inadmissible at trial.

Mr. Cost was arrested for various firearms offenses and filed a motion to suppress. Testimony revealed that investigating officers were patrolling a high crime area in Philadelphia in an unmarked vehicle at approximately 9 p.m., when they observed Cost and three other individuals in an alley. The officers suspected “there might be something going on back there.” Thus, the policemen circled the block and stopped their vehicle in front of the alleyway to conduct an investigation. According to the officers, they did not activate the vehicle’s emergency sirens or lights.

One of the officers testified that when he and his partner got out of their vehicle, he announced “police” because the officers were in plain cloths. He then asked the subjects if any of them ” live back there,” to which they replied they did not. The officer testified that, upon request, all of them handed him identification cards of some sort. The officer then asked “was there anything- you guys have anything on you I need to know about,” to which they also said no.

The officer testified that while Cost was removing a backpack, an officer asked, “you have anything in that backpack I need to know about?’ Cost admitted that he had a gun in the bag. Subsequently, the officer’s partner recovered a handgun. At no time prior to the arrest did investigating officers see any evidence of illegal activity.

The central inquiry for the Court was whether, given the totality of the circumstances, the conduct of the police would lead a reasonable person to believe that he was not free to leave. Here, the Court concluded that the officers’ retention of an identification card in order to conduct a warrant check while asking if there was anything in a backpack that he needed to know about was sufficient to make a reasonable person believe he was not free to leave. Coupled with the initial announcement of”police”, the Court held that someone could reasonably conclude that they were perceived by an investigating officer as a threat. Questions from the officer concerning whether or not there was anything that they needed to know was an important factor the Court looked at in determining that the stop had escalated beyond a mere encounter.

Similarly, in Commonwealth v. Powell, 2020 PA Super 19, the Superior Court affirmed the trial court’s suppression of evidence following a stop of an individual sitting in his car eating fast food.

Investigating officers approached Powell’s vehicle as it sat in an empty parking lot. They pulled up behind it in their vehicle but did not activate their lights. Although the area was known for criminal activity, the officers had not received any reports of illegal activity nor did they see any before approaching the vehicle on both sides. The officers ordered Powell to roll down his window. Powell had glassy eyes and smelled of alcohol. After failing sobriety tests, he was placed under arrest for DUI.

Following a hearing, the trial court ruled that the interaction between the officers and Powell became an investigative detention when one of the officers ordered Powell to roll down his window. Since the detention was not supported by reasonable suspicion, the Court granted the Motion to Suppress.

Again, given the totality of the circumstances, the Court held that Powell reasonably believed he was not free to leave and his detention illegal. In making this determination, the Court pointed to the number of officers present during the interaction as well as their demeanor. The officers could see that Powell was legally parked doing nothing more than eating food purchased from a nearby restaurant. Given these circumstances, the Superior Court upheld the suppression of evidence by the trial court.