In Pennsylvania, once a motorist is told that he is free to leave, despite the fact the officer has grounds for further inquiry, the motorist must be allowed to go unless something else justifies the continued detention. That is, there must be a break in the causal connection. Commonwealth v. Moyer, 2006 PA Super 379, 2006 Pa. Super. LEXIS 4648 (December 29, 2006):
[¶ 17] Finding that the second encounter constituted an investigatory detention, we must next evaluate its legality, as that inquiry directly impacts the voluntariness of Moyer’s consent to search.
“To conduct an investigative detention, a law enforcement officer must harbor at least a reasonable suspicion that the person seized is then engaged in unlawful activity. Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of [intrusion] warrant a man of reasonable caution in the belief that the action taken was appropriate.”
See Commonwealth v. Johnson, 833 A.2d 755, 762-63 (Pa. Super. 2003) (citations omitted). The second police/citizen interaction must be evaluated independently to determine if reasonable suspicion existed based on factors arising after the end of the initial stop. Id. at 763; Ortiz, 786 A.2d at 266 (“Without existence of a reasonable suspicion after the first encounter had ended, the second detention was unlawful.”). Thus, “even where a defendant’s conduct during the initial stop ‘may have merited further inquiry,’ the ··· officer’s instruction to the defendant that he was free to leave vitiated any grounds he had to hold the defendant further.” Johnson, 833 A.2d at 763 (quoting Ortiz, 786 A.2d at 266). Under such circumstances, “[a]bsent some new observation of suspicious circumstances, the defendant’s continued detention [would be] illegal.” Id.
[¶ 18] The second detention in the instant case lacks the indicia of reasonable suspicion independent from observations made prior to the endpoint of the initial traffic stop, e.g., that Moyer had bloodshot eyes, was nervous and swaying, was making furtive movements. Accordingly, we conclude that the second investigatory detention was illegal, thereby tainting the voluntariness of Moyer’s consent.
[¶ 19] Thus, in a final effort to establish that Moyer’s consent was voluntary, the Commonwealth would have to demonstrate that there exists both a “sufficient break in the causal chain between the illegality and the seizure of evidence, thus assuring that the search is not an exploitation of the prior illegality, and … voluntariness.” Strickler, 757 A.2d at 889. The Commonwealth has failed to do so.
[¶ 20] Although we could end our analysis here, it is worth noting that the trial court examined other factors that support its finding that Moyer’s consent was not voluntary. In addition to the taint upon the consent stemming from the illegal second detention, these other factors include:
• the person’s knowledge of the right to refuse to consent to the search;
• the maturity, sophistication and mental or emotional state of the defendant (including age, intelligence and capacity to exercise free will); and
• the presence or absence of physical contact or police direction of the subject’s movements, the demeanor of the police officer, the manner of expression used by the officer in addressing the subject, the location of the encounter, and the content of the interrogatories or statements.
Commonwealth v. Rosas, 875 A.2d 341, 349 (Pa. Super. 2005) (citing Strickler, 757 A.2d 884, 897-898, 901 (Pa. 2000)). The trial court’s findings, which are supported by the record, include the fact that Moyer was unaware of his right to refuse consent, that Moyer had an eighth grade education, and that Moyer “appeared to the court to be somewhat ‘slow’ in terms of his intellectual capacity.” T.C.O. at 2. Additionally, as noted above, the location of the encounter (i.e., a dark rural road) and the content of Corporal Moyer’s interrogatories (i.e., with regard to the prior marijuana violation), also favor the trial court’s conclusion that Moyer’s consent was not voluntary.
