PA: Re-engaging driver with questions after saying he’s free to leave is a second stop

When defendant during a traffic stop is told he is free to leave and the officer starts to go back to the patrol car, but returns to re-engage the driver, that is a second stop requiring reasonable suspicion. No reasonable person would believe they are free to leave at that point. Commonwealth v. Ngyuen, 2015 PA Super 98, 2015 Pa. Super. LEXIS 223 (April 27, 2015):

Given the facts surrounding the subsequent interaction, we conclude that the driver and Appellant were subject to a second seizure. As noted, the driver and Appellant were stopped for a lawful detention resulting from the motor vehicle code violations. Because the trooper had accomplished the purpose of the stop, as indicated by his issuance of a warning and stating that the driver and Appellant were free to go, the driver would have been within his rights to drive away at that point. Nevertheless, the trooper’s subsequent actions were inconsistent with his statement that they were free to leave. After walking toward his cruiser, the trooper turned around and returned to the driver’s vehicle, approached the driver, and began to ask the driver additional questions. Moreover, when the trooper re-engaged the driver, the driver was still standing outside of his vehicle. N.T., 6/20/13, at 73. As this Court has noted, when a person is standing outside rather than inside his vehicle, he is less likely to believe that he can actually leave the area by entering the car and driving away. Commonwealth v. Kemp, 2008 PA Super 274, 961 A.2d 1247, 1254 (Pa. Super. 2008) (citing Moyer, 954 A.2d at 659).

Thus, even though the trooper advised the driver and Appellant that they were free to leave, the trooper’s actions would suggest to a reasonable person that such advice was no longer operative. Freeman, 757 A.2d at 908. Indeed, the trooper testified that it was his intention to re-engage the driver after ending the initial traffic violation stop. As such, we cannot conclude that a reasonable person would feel free to leave the scene. As noted previously, “when an individual has been subjected to a valid detention and the police continue to engage that person in conversation, the citizen, having been in official detention, is less likely to understand that he has the right to refuse to answer questions or a search.” Moyer, 954 A.2d at 665. Thus, we conclude that the driver and Appellant were not involved in a mere encounter with the troopers at that point, but instead were subjected to a second investigative detention. See Commonwealth v. Jones, 2005 PA Super 166, 874 A.2d 108, 116 (Pa. Super. 2005) (“[W]here the purpose of an initial traffic stop has ended and a reasonable person would not have believed that he was free to leave, the law characterizes a subsequent round of questioning by the police as an investigative detention or arrest.”).

Accordingly, for this investigative detention to pass constitutional muster, it must be supported by reasonable suspicion of criminal activity. Kemp, 961 A.2d at 1254. “Where 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.” Jones, 874 A.2d at 117.

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Thus, we conclude that the driver’s behavior of being overly apologetic or nervous is insufficient to establish reasonable suspicion. Additionally, Trooper Bromberg possessed the information regarding Appellant’s criminal history prior to ending the initial stop based on the traffic violation. Accordingly, such information could not serve as the basis of reasonable suspicion for the subsequent interaction after the initial stop ended. Moreover, as previously noted, Trooper Bromberg testified to having the intention of re-engaging the driver after ending the initial traffic violation stop with the hopes of turning that interaction into a mere encounter. Thus, we cannot conclude that the Trooper had reasonable suspicion to justify the second investigative detention.