Well reasoned Pa Superior Court decision holding that troopers lack reasonable suspicion to detain alleged underage drinker for investigation when they proceeded on nothing more than her appearance as appearing to be under twenty-one years of age.
2003 PA Super 358
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
Appellee : PENNSYLVANIA
COLLEEN WOOD, : No. 2216 EDA 2001
Appeal from the Judgment of Sentence June 20, 2001,
Court of Common Pleas of Philadelphia County,
Criminal Division at No. MR 01-005036, SU 01-03-007738-01.
BEFORE: JOHNSON, FORD ELLIOTT, JOYCE, STEVENS, ORIE MELVIN,
LALLY-GREEN, BENDER, BOWES, and GRACI, JJ.
OPINION BY JOHNSON, J.: Filed: September 23, 2003
¶ 1 Colleen Wood appeals the judgment of sentence imposed following her
conviction of underage drinking. Ms. Wood contends that police stopped her
illegally, without reasonable suspicion that she was engaged in criminal
activity. The District Attorney for Philadelphia County asks this Court to
conclude that it was reasonable for a Pennsylvania State Trooper, assigned
as a liquor enforcement officer, to suspect that a seventeen-year old sitting
in a bar was engaged in criminal activity where the only observation put
forth by the Commonwealth to support such suspicion was that, from the
arresting officer’s experience, the minor “looked to be under the age of 21.”
For an investigative detention to comport with constitutional minimums, the
law requires that the suspected criminal activity must be linked with the
officer’s observation of suspicious or irregular behavior of the particular
individual involved. Here, the enforcement officers possessed absolutely no
evidence, nor had they observed any culpable conduct involving Colleen
Wood, prior to her alleged inculpatory declaration overheard by one of the
officers. We believe that the detention of Ms. Wood was not justified by
reasonable suspicion and that, accordingly, her alleged confession of
underage drinking is not admissible at trial. Accordingly, we vacate the
judgment of sentence, reverse the conviction and remand.
¶ 2 Ms. Wood presents this matter framing the statement of the question
Where it is not a crime for minors to be present in a bar and
where no law requires persons inside a bar to have or show
identification, do the federal and state constitutions require that
the police have probable cause to believe that a person has
committed a crime before arresting her for underage drinking, or
can they conduct mass arrests first and then release those who
can prove they are not violating the law?
Brief for Appellant at 2. While the statement as phrased might reasonably
be seen by some as hyperbolic, it captures the issue this Court must resolve
on this appeal: when viewing all of the surrounding circumstances, did the
liquor enforcement officers have reasonable suspicion that Ms. Wood was
engaged in criminal activity prior to subjecting her to the investigative
detention that gave rise to her confession? We conclude that the officers did
not possess reasonable suspicion that criminal activity by Ms. Wood was
¶ 3 Our Supreme Court has recently re-stated the standard by which we
review a trial court order denying a motion to suppress:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct. Since the prosecution prevailed in the suppression
court, we may consider only the evidence of the prosecution and
so much of the evidence for the defense as remains un-
contradicted when read in the context of the record as a whole.
Where the record supports the factual findings of the trial court,
we are bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003) (citations
omitted). “When ruling on suppression motions, the suppression court is
required to make findings of fact and conclusions of law as to whether
evidence was obtained in violation of the defendant’s constitutional rights.”
Commonwealth v. Haynes, 577 A.2d 564, 570 (Pa. Super. 1990); see
Pa.R.Crim.P. 581(I). Here, the suppression court did not make findings of
fact on the record at the time of the hearing, although it did discuss the
suppression issue in its opinion filed 11/5/01 pursuant to Pa.R.A.P. 1925(b).
Because the only witness at the suppression hearing was Liquor Enforcement
Officer Cynthia A. Taylor, we will consult the record directly to ascertain the
facts surrounding Ms. Wood’s detention and subsequent arrest. See
Haynes, 577 A.2d at 570.
¶ 4 The Suppression Hearing Transcript (S.H.T.), 6/20/01, establishes the
following facts. Pennsylvania State Trooper Taylor was assigned as a liquor
enforcement officer and had been in that assignment for approximately a
year and a half at the time of the incident here under review. S.H.T. at 4-5,
R.R. 7a-8a. She had been with the Philadelphia enforcement unit for six
months. Id. at 5, R.R. 8a. On February 27, 2001, Trooper Taylor, along
with other officers, was working an assigned detail for the Mardi Gras
celebration on South Street in Philadelphia. Id. at 6, R.R. 9a. The officers
were on South Street as a result of their sergeant having received reports
from the Philadelphia Police Department Vice Unit that “there was a good
chance [the officers] would be finding a lot of underage drinking because it’s
a well-known party on South Street during Mardi Gras.” Id.
¶ 5 At the suppression hearing, when the assistant district attorney
questioned Trooper Taylor as to what the officers would look for while on
patrol, the transcript includes this exchange:
Q. [ADA Joseph Doyle]: And tell us what you looked for?
A. [Trooper Taylor]: Usually [,] what we do is just go in in
undercover status in street clothes, walk around and we’re
assigned to go into bars, take a look around, see if we see
anyone youthful appearing drinking beer or alcoholic beverages.
If we do, then we radio to the entire detail to come down and do
a routine inspection of the premises.
Q. What happens if you think you go into a bar and you see
someone youthful in appearance, do you mean under the age of
Q. And why is that?
A. Because it is illegal in the city of Pennsylvania [sic] to be
drinking alcoholic beverages under the age of 21.
S.H.T., 6/20/01, at 6-7, R.R. 9a-10a (emphasis added).
¶ 6 Along with several other officers from the State Liquor Control
Department, Trooper Taylor entered the “Name That Bar” on South Street.
Id. at 8, R.R. 11a. Trooper Taylor testified that, from the officers’
“experience,” and based solely on whether a bar patron “looked to be under
the age of 21,” the officers would ask the bar patron for identification, a
process known as carding. Id. at 9, R.R. 12a. When the officers have found
“four, five, six” underage patrons, they separate all the patrons under 21 in
a separate area of the bar. Id. at 10, R.R. 13a. Any patron over the age of
21 is ordered to leave the bar. Trooper Taylor acknowledged that, on this
occasion, patrons over 21 were “free to leave” the bar. Id. The conclusion
is inescapable that persons in the bar who were carded and could not prove
they were over 21 were not “free to leave.” As to the sequence by which
the officers proceeded with their investigation, Trooper Taylor testified that
first, the officers would determine age, and then, and only then, were the
officers “going to determine whether or not they had been drinking alcohol.”
¶ 7 On cross-examination, Trooper Taylor again confirmed that it was only
after the “over 21’s” had been separated from the “under 21’s” that the
officers proceeded to determine whether or not the “under 21’s” had been
drinking. Id. at 15, R.R. 18a. During the raid, either state or city police
officers blocked the doorway and all exits until identification could be
established. Id. at 13-14, R.R. 16a-17a. The identity of the officers
blocking egress was clear to all in the bar. Id. at 14, R.R. 17a. Taylor
testified that any patron “youthful in appearance” would have been
prevented from leaving, even if the patron expressed a desire to leave the
¶ 8 After the officers identified Ms. Wood as being seventeen years of age,
and only after she was segregated along with the other patrons who were
“youthful in appearance,” Trooper Taylor overheard Ms. Wood declare that
“she was drinking not in that bar but . . . she had been drinking that
evening.” Id. at 11, R.R. 14a. It was based upon this declaration alone that
Ms. Wood was “set aside” to “get in line and be cited for [18 Pa.C.S. §] 6308
[underage drinking].” Id. at 12, R.R. 15a. Officer Manning, a Philadelphia
police officer who did not testify at the suppression hearing, wrote the
Section 6308 citation underlying Ms. Wood’s prosecution and conviction. Id.
¶ 9 Trooper Taylor, the only Commonwealth witness, offered no testimony
that she or anybody else observed Ms. Wood purchasing, attempting to
purchase, consuming or possessing any alcoholic beverages in the “Name
That Bar” or anywhere else in Philadelphia. In fact, the suppression hearing
transcript is devoid of any testimony that any officer had observed anybody
who may have “looked to be under the age of 21” purchasing, consuming or
possessing any alcoholic beverages prior to the segregation of those patrons
thought to be minors. The officers segregated Ms. Wood and others such
that she reasonably could understand she was not free to leave. Ms. Wood’s
confession of prior consumption of alcohol arose only after she had been
detained for investigation, without any observed suspicious or criminal
conduct on her part. Ms. Wood’s detention was based solely on her
appearance. The summary citation issued to Ms. Wood was based solely on
Ms. Wood’s admission, after being detained, that she had consumed alcohol
earlier in the evening at a location away from “Name That Bar.” We
conclude that Ms. Wood’s statement was acquired while she was unlawfully
detained. Her admission, therefore, is inadmissible.
¶ 10 On this appeal, this Court need not decide whether the police practice
of detaining en masse all those in a bar who “appear to be under twenty-one
years of age” regardless of their individualized conduct, comports with the
Fourth Amendment or Article I, Section 8 of the Pennsylvania Constitution.
We need here consider only whether the attachment, arrest and conviction
of Ms. Wood meets constitutional requirements. We believe that the
troopers’ lack of reasonable suspicion is sufficient to mandate reversal of this
¶ 11 The Pennsylvania Constitution provides:
The people shall be secure in their persons, houses, papers
and possessions from unreasonable searches and seizures, and
no warrant to search any place or to seize any person or things
shall issue without describing them as nearly as may be, nor
without probable cause, supported by oath or affirmation
subscribed to by the affiant.
Pa. Const. art. I, § 8. Similarly, the Fourth Amendment to the Constitution
of the United States provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV. Thus, under both federal and state provisions,
people are to be secure in their persons against unreasonable searches and
seizures. We now examine whether Ms. Wood was detained unreasonably,
thereby tainting any evidence seized as a result of that detention, including
Ms. Wood’s admission that she previously had consumed alcohol at a
different location that evening.
¶ 12 It is well established that contacts between the police and the citizenry
fall within three general categories: mere encounter, investigative detention
and custodial detention or arrest. See Commonwealth v. Strickler, 757
A.2d 884, 889 (Pa. 2000). Our Supreme Court has defined these
interactions as follows:
The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to
respond. The second, an “investigative detention” must be
supported by reasonable suspicion; it subjects a suspect to a
stop and a period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention” must be
supported by probable cause.
Commonwealth v. McClease, 750 A.2d 320, 324 (Pa. Super. 2000)
(citations omitted) (quoting Commonwealth v. Ellis, 662 A.2d 1043, 1047-
48 (Pa. 1995)).
¶ 13 Pennsylvania courts recognize that under limited circumstances police
are justified in investigating a situation, so long as the police officers
reasonably believe that criminal activity is afoot. See Commonwealth v.
Rodriguez, 614 A.2d 1378, 1383 (Pa. 1992). In order to demonstrate a
reasonable suspicion, the police officer must be able to point to “specific,
articulable facts and reasonable inferences drawn from those facts in the
light of the officer’s experience.” Commonwealth v. Jackson, 698 A.2d
571, 573 (Pa. 1997).
¶ 14 In determining whether a mere encounter has risen to the level of an
investigative detention, the primary inquiry must be whether a seizure of the
person has occurred. See Commonwealth v. Mendenhall, 715 A.2d
1117, 1120 (Pa. 1998). Our Supreme Court has held that “[t]o maintain
constitutional validity, an investigative detention must be supported by a
reasonable and articulable suspicion that the person seized is engaged in
criminal activity and may continue only so long as is necessary to confirm or
dispel such suspicion. . . .” Strickler, 757 A.2d at 889. Within this context,
it is axiomatic that our courts discern whether a person has been seized by
determining “whether, under all the circumstances surrounding the incident
at issue, a reasonable person would believe he was free to leave.”
Commonwealth v. Smith, 732 A.2d 1226, 1232 (Pa. Super. 1999).
¶ 15 In the case before us, Trooper Taylor admitted that police conducted
the bar raid first by carding those who appeared to be younger than 21
years of age, and then detained those who in fact were younger than 21 in a
designated section of the bar, regardless of whether they had been observed
consuming alcohol. Although the initial action taken by police in carding Ms.
Wood among other youthful patrons arguably could have been characterized
as a “mere encounter,” there is no question that after Ms. Wood was carded,
the mere encounter rose to the level of an investigative detention, for by
Trooper Taylor’s own admission, all persons in the bar determined by police
to be under 21 years of age, whether consuming alcohol or not, were
detained in a designated section of the bar while those who were at least 21
years old were free to leave.
¶ 16 It was then that in order to continue to detain Ms. Wood, police
needed to have formed a reasonable, articulable suspicion that she was
engaged in, or was about to engage in, criminal activity. Though it is
against the laws of this Commonwealth to consume alcohol while under the
age of 21, there is no statute making it a crime for persons under 21 simply
to be present in a bar on one isolated occasion. It is undisputed that Ms.
Wood was not observed to be consuming alcohol prior to being carded and
then detained by police. The only “evidence” that the officers possessed
that could have supported a reasonable suspicion of criminal activity was the
second-hand report from the Philadelphia Police Department Vice Unit that
there was a “good chance” that the officers would be finding “a lot of
underage drinking” because of a “well-known party on South Street during
Mardi Gras.” S.H.T., 6/20/01, at 6, R.R. 9a. There is absolutely no evidence
on the record that any underage patron was observed drinking or purchasing
alcohol at any time prior to the segregation of the patrons. Only after the
officers had detained Ms. Wood, and at a point where she clearly was not
free to leave, did Ms. Wood admit to having consumed alcohol earlier in the
evening before entering “Name That Bar.” Thus, her incriminating
statement was obtained illegally. See Commonwealth v. Gibson, 638
A.2d 203, 207 (Pa. 1994) (holding convictions for summary offense of
underage drinking reversed where police lacked probable cause to enter
apartment for search that yielded evidence of minors consuming alcohol).
¶ 17 The Commonwealth relies on our decision in Commonwealth v.
Elliott, 546 A.2d 654 (Pa. Super. 1988) to support its contention that the
officers’ suspicion that criminal activity was afoot was reasonable, in spite of
the fact that police did not see Ms. Wood or anyone else consuming alcohol
and in spite of the additional fact that presence within a bar of persons
under age 21 is not illegal. Brief for Appellant at 9. In Elliott, this Court
considered whether a police officer who has lawfully stopped a vehicle for a
suspected Motor Vehicle Code violation may, consistent with the Fourth
Amendment, order a passenger to exit the vehicle when the passenger is
suspected of committing a crime. See id., 546 A.2d at 657. This Court
concluded that the arresting trooper had reasonable suspicion that criminal
activity was afoot, and that the trooper could reasonably conclude that the
passenger was engaging in underage drinking. See id. at 660. In so
concluding, this Court examined a fact situation where the investigating
trooper observed a bag of ice with beer in it located behind the passenger’s
seat, as well as a strong odor of alcohol emanating from the vehicle and
several empty beer bottles strewn throughout the interior of the vehicle.
See id. at 656, 660. When the underage passenger opened the car door
and exited the vehicle, “an open bottle of beer, which was apparently
wedged between the door and [the passenger’s] leg, spilled out onto the
road.” Id. at 656.
¶ 18 The trooper’s observation of the bag of ice with beer in it located
behind the passenger’s seat, and the strong odor of alcohol coming from the
vehicle, coupled with the trooper’s suspicion that the passenger was under
the legal age for consuming alcoholic beverages, supported a reasonable
suspicion that criminal activity was afoot and that the passenger was
violating the law by engaging in underage drinking. However, that is not the
case here, where the only evidence to support a reasonable suspicion that
Ms. Wood was engaging in criminal activity was the fact that she may have
appeared to be under the age of 21, she was sitting in a bar, and the
Philadelphia police had told the troopers’ supervisor that there was a “good
chance” that the troopers would find “a lot of underage drinking” on South
Street during Mardi Gras.
¶ 19 In this case, the officers did not find any underage drinking in the
“Name That Bar” or, if they did, the Commonwealth did not elect to present
such evidence at the suppression hearing. Trooper Taylor testified that the
troopers’ standard procedure is to “go into bars, take a look around, [and]
see if we see anyone youthful appearing drinking beer or alcoholic
beverages.” S.H.T., 6/20/01, at 7, R.R. 10a. It is only after the troopers
observe a youthful-appearing patron drinking alcoholic beverages that they
then “radio to the entire detail to come down and do a routine inspection of
the premises.” Id. That policy was not followed here. Trooper Taylor
testified that “initially what we wanted to do is determine age. And then we
were going to determine whether or not they had been drinking alcohol.”
Id. at 19, R.R. 13a.
¶ 20 Ms. Wood poses the question as whether the police can “conduct mass
arrests first and then release those who can prove they are not violating the
law?” Brief for Appellant at 2. We agree with the Commonwealth that we
are not here reviewing the circumstances of Ms. Wood’s arrest. The
Commonwealth concedes that the police subjected Ms. Wood to an
investigatory detention when they separated her from other bar patrons.
Substituted Brief for Petitioner/Appellee at 5-6. The Commonwealth
contends, and we agree, that the only issue is whether the police had
reasonable suspicion to justify that investigatory detention.
¶ 21 The courts of this Commonwealth have never determined that the
conduct of a group will support a finding of reasonable suspicion of an
individual, barring some particularized conduct by that individual. The
surrounding circumstances in Elliott, with beer in the seat behind the
passenger and empty beer bottles strewn throughout the vehicle, coupled
with a strong odor of alcohol throughout the car in which only two people
were present, supported the officer’s suspicion that the passenger had
indeed engaged in underage drinking. This Court has most recently again
To establish grounds for “reasonable suspicion” sufficient to
justify an investigative detention, the officer must articulate
specific observations which, in conjunction with reasonable
inference derived from these 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. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673,
676 (1999). Mere hunches on the part of the officer are
insufficient to meet this burden; however, “…a combination of
innocent facts, when taken together, may warrant further
investigation by the police officer.” Id.
Commonwealth v. Bennett, 827 A.2d 469, 477 (Pa. Super. 2003)
(emphasis added). “Our courts have mandated that law enforcement
officers, prior to subjecting a citizen to investigatory detention, must harbor
at least a reasonable suspicion that the person seized is then engaged in
unlawful activity.” Commonwealth v. Beasley, 761 A.2d 621, 625 (Pa.
Super. 2000). “[E]ven where the circumstances surrounding an individual’s
conduct suggest ongoing illegality, the individual may not be detained unless
his or her personal conduct substantiates involvement in that activity.” Id.
at 626. Our Supreme Court has rejected an attempt by the Commonwealth
to justify the detention and subsequent arrest of three women sitting on the
stoop in front of a multi-family apartment building where a drug raid was in
progress, finding a complete absence of a link between the women and the
apartment where drugs were allegedly being distributed. See
Commonwealth v. Rodriquez, 614 A.2d 1378 (Pa. 1992).
¶ 22 Case law requires a particularized connection between the alleged
criminal activity and the conduct of the person sought to be detained. See
Bennett, Beasley, and Rodriquez. Here, the alleged criminal activity is
underage drinking. Ms. Wood’s conduct, from the record, was nothing more
than being present in the “Name That Bar” at a time when the officers
determined to “take a look around” to see if they could observe “anyone
youthful appearing drinking beer or alcoholic beverages.” They did not
observe Ms. Wood drinking alcoholic beverages. Nor did they observe her
possessing, purchasing, or attempting to purchase alcoholic beverages. The
individualized observation of suspicious conduct of the particular person
detained, in this case, Ms. Wood, is totally lacking. The suspicion is,
therefore, unreasonable and the detention resulting therefrom was unlawful.
Accordingly, the evidence taken during that illegal detention must be
suppressed. See Beasley, 761 A.2d at 626-28; see also Rodriquez, 614
A.2d at 1381-84.
¶ 23 Even if it were determined that the troopers possessed reasonable
suspicion that Ms. Wood was, herself, engaged in criminal activity, we would
remain convinced that this conviction cannot stand. The troopers detained
her without any evidence linking her to underage drinking. It was only Ms.
Wood’s admission, made while detained, that supports her conviction. The
trial court, sitting non-jury, declared: “After hearing the evidence presented
to me[,] the court finds you guilty of underage drinking.” S.H.T., 6/20/01,
at 21, R.R. 24a. A careful examination of the record establishes that the
only evidence presented to the court concerning Ms. Wood’s conduct was her
admission, made while under detention, that she had been drinking earlier
that evening someplace away from “Name That Bar.”
¶ 24 In order to preserve an issue for review, a litigant must make timely
and specific objection during trial and raise the issue in post-trial motions.
See Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1124 (Pa. 2000).
Issues not preserved for appellate review should not be considered by an
appellate court even though the error involves a basic or fundamental error.
See Reilly v. Southeastern Pennsylvania Transp. Auth., 489 A.2d 1291,
1296 (Pa. 1985); see also Trach v. Fellin, 817 A.2d 1102, 1107-08, 1119
(Pa. Super. 2003) (en banc) (recognizing that Superior Court, as error-
correcting court, may not purport to reverse an order where only basis for
finding error is claim responsible party never gave trial court opportunity to
¶ 25 Nevertheless, we feel compelled to observe that, in any criminal case,
a conviction may not be based upon the extra-judicial confession of the
accused unless it is corroborated by independent evidence establishing the
corpus delicti. See Commonwealth v. Ahlborn, 657 A.2d 518, 520-21
(Pa. Super. 1995) (citing Commonwealth v. Ware, 329 A.2d 258, 274 (Pa.
1974)). The law of Pennsylvania requires that the Commonwealth prove the
existence of the corpus delicti beyond a reasonable doubt, that is, prove that
Ms. Wood was, in fact, drinking, before the fact-finder may consider the
defendant’s confession. See Commonwealth v. Tallon, 387 A.2d 77, 81
(Pa. 1978); see also Ahlborn, 657 A.2d at 521. Without the confession,
there is nothing on this record to permit the fact-finder to conclude that a
crime had been committed. It appears undisputed that no corroboration by
independent evidence exists to establish the alleged criminal conduct of
underage drinking. If this issue were properly before us, the judgment of
sentence would require reversal on this ground alone.
¶ 26 We conclude that the troopers lacked reasonable suspicion to detain
Ms. Wood for investigation when they proceeded on nothing more than her
appearance as appearing to be under twenty-one years of age. Without the
requisite reasonable suspicion, the admission is rendered inadmissible at any
trial. Moreover, were the issue before us, we would find that the use of her
admission offends the corpus delicti rule. Accordingly, we conclude that the
judgment of sentence cannot stand.
¶ 27 Judgment of sentence VACATED. Conviction REVERSED. Case
REMANDED for further proceedings not inconsistent with this Opinion.
¶ 28 Judges Ford Elliott, Joyce, Lally-Green, Bender and Bowes, joined the
Opinion by Johnson, J.
¶ 29 Stevens, J. files a Dissenting Opinion in which Judges Orie Melvin and
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
COLLEEN WOOD, :
Appellant : No. 2216 EDA 2001
Appeal from the Judgment of Sentence June 20, 2001
In the Court of Common Pleas of Philadelphia County
Criminal at No.: MR 01-005036 SU 01-03-007738-01
BEFORE: JOHNSON, FORD ELLIOTT, JOYCE, STEVENS, ORIE MELVIN,
LALLY-GREEN, BENDER, BOWES and GRACI, JJ.
DISSENTING OPINION BY STEVENS, J.:
¶ 1 I conclude that the Commonwealth proved that the officers in question
had the necessary reasonable suspicion to conduct an investigatory
detention of Appellant, and, therefore, I would affirm the judgment of
sentence. As such, I respectfully dissent.
¶ 2 My review of the record reveals that on February 27, 2001, Mardi Gras
festivities were taking place on South Street in Philadelphia, Pennsylvania.
Reports from the Philadelphia Police Department suggested that significant
underage drinking was likely to occur in that area during these festivities.
Accordingly, several Pennsylvania liquor control officers were assigned to a
detail to identify patrons in South Street bars who appeared to be under the
age of twenty-one and who were drinking alcoholic beverages.
– 21 –
¶ 3 The Pennsylvania liquor control officers specifically targeted a bar
called “Name That Bar” on South Street, and officers wearing street clothes
went thereto. Upon entering the bar, the officers approached patrons who
looked under twenty-one years old and asked them to produce identification.
Those patrons identified as being under the age of twenty-one were
separated from the other patrons. Appellant, who was in the bar at the
time, revealed that she was seventeen years old, and she was detained
along with the other patrons. While standing near Appellant, Pennsylvania
Liquor Control Officer Cynthia Taylor saw that Appellant was upset and
Appellant indicated that she had not been drinking alcohol while in “Name
That Bar,” although she had been drinking alcohol earlier in the evening.
Based upon Appellant’s admission, she was charged with underage drinking,
18 Pa.C.S.A. § 6308, and she subsequently filed a motion to suppress.
¶ 4 I conclude that the lower court properly denied Appellant’s motion to
suppress. Following the dictates of the United States Supreme Court in
Terry v. Ohio, 392 U.S. 1 (1968), Pennsylvania Courts have recognized
that under limited circumstances, police officers are justified in investigating
a situation and may conduct brief, investigatory detentions of individuals, so
long as the police officers reasonably believe that criminal activity may be
afoot. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673 (1999); In re
C.C.J., 799 A.2d 116 (Pa.Super. 2002). In determining whether a
reasonable suspicion exists, we must look to the totality of the
– 22 –
circumstances. Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa.Super.
1998). A police officer must demonstrate reasonable suspicion by pointing
to articulable facts and reasonable inferences drawn from those facts in light
of the officer’s experience. Commonwealth v. Jackson, 548 Pa. 484, 698
A.2d 571 (1996). A law enforcement officer who “lacks the precise level of
information necessary for probable cause to arrest” but possesses
reasonable suspicion of criminal activity, is not required “to simply shrug his
shoulders and allow…a criminal to escape.” Commonwealth v. Lagamba,
613 A.2d 1, 5 (Pa.Super. 1992). “Merely because a suspect’s activity may
be consistent with innocent behavior does not alone make detention and
limited investigation illegal.” In re C.C.J., 799 A.2d 116, 121 (Pa.Super.
¶ 5 Under the totality of the circumstances in this case, I conclude that the
officers had a reasonable, articulable suspicion to believe that Appellant was
engaged in criminal activity when she was briefly stopped at “Name That
Bar.” Here, the police observed Appellant, who appeared to be under the
legal drinking age, in an establishment whose primary purpose is to sell
alcohol, during a time when, based on the officers’ experience, a substantial
amount of underage drinking occurred. I conclude that the circumstances
justifying the investigative detention in this case are stronger than those in
other cases in which this Court has found sufficient reasonable suspicion to
necessitate an investigative detention. For example, in In re C.C.J., 799
– 23 –
A.2d 116 (Pa.Super. 2002), a panel of this Court concluded that officers had
a reasonable suspicion to justify a stop when they observed a juvenile, who
appeared to be of a school age youth, on the public street during a time
when school was in session. We specifically concluded that the apparent age
of the appellant, together with the time of day, was sufficient for the police
to suspect that the appellant was a truant. While it was not illegal for the
appellant to be present on a public street, in light of other circumstances,
such as the time of day and fact the appellant was a minor, the police were
justified in investigating the matter further.
¶ 6 As in In re C.C.J., the apparent age of Appellant, along with the place,
time, and circumstances surrounding her presence in “Name That Bar” were
sufficient for experienced officers to briefly detain Appellant for investigative
purposes. In fact, I conclude that it would have been a dereliction of their
duty for Pennsylvania liquor control officers not to further investigate for
underage drinking in circumstances such as those presented here.
¶ 7 Finally, I find the Majority’s comments regarding the corpus delicti rule
unnecessary and inconsistent with this Court’s scope of review. The Majority
includes comments on an issue which was not properly preserved in the
court below. My review of the record reveals that Appellant failed to object
under the corpus delicti rule, and, therefore, any challenge thereto has not
been preserved. Pa.R.A.P. 302.
– 24 –
¶ 8 Judges Orie Melvin and Graci joined the Dissenting Opinion by