PA: Sometimes a police-citizen encounter is “a legal fiction” in an “Alice in Wonderland scenario,” like here, but they’re bound by it

The officers’ seeing the outline of a gun on defendant’s person as they drove by justified their turning around and encountering him. Under existing law, “a legal fiction” in an “Alice in Wonderland scenario” the court is bound by, defendant was still subject to a “mere encounter.” Commonwealth v. Jones, 2021 Pa. Super. LEXIS 698 (Nov. 29, 2021):

We are sympathetic to Jones’s assertion that, “[t]o hold that a reasonable, innocent person in [] Jones'[s] position would have felt free to continue walking and ignore Officer Tranter’s questioning, confident that he would not be further pursued or impeded by the officers, would be to ignore the realities of human nature.” Brief for Appellant at 13.

Pennsylvania courts have long “recognize[d] the conceptual difficulties inherent in the administration of the reasonable-person standard. Although the test is cast in objective terms, absent empirical proofs, there remains substantial room for reasonable disagreement concerning how such a hypothetical person might feel in any given set of circumstances.” Luczki, 212 A.3d at 544 (citing Commonwealth v. Au, 42 A.3d 1002, 1007 (Pa. 2012)). Indeed, even an individual with a thorough understanding of the law would not feel free to leave a situation in which the police initiate an interaction. As the Honorable Eugene B. Strassburger previously emphasized,

case law has developed into an Alice in Wonderland scenario, as judges attempt to determine if an individual is or is not free to leave.

When a police officer initiates an encounter, an individual as a practical matter never feels free to leave. The police officer has a weapon. The police officer’s testimony is almost always believed in court. No reasonable person would walk away from an encounter with a police officer.

Lawyers, judges and law professors can debate the niceties as to whether an individual is legally free to leave, but the case law does not comport with reality.

Lyles, 54 A.3d at 84 (Strassburger, J., concurring) (emphasis in original).

It is time to dispel the notion of a “mere encounter.” The concept is a legal fiction, entirely divorced from reality. Nevertheless, based upon the law as it presently exists, we must affirm the judgment of sentence.