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Court vacates sentence for Morrisdale man

Police powers of warrantless searches at issue

When two Clearfield County police officers found a Morrisdale man asleep at the wheel of his car parked in the lot of a Walmart Supercenter two years ago, they immediately detained him, and in an ensuing search, found 61 grams — just over 2 ounces — of methamphetamine.

The officers, Lawrence Township Police Chief Douglas Clark and Patrol Officer Eric Routch, charged Brandon James Kifer, now 40, with driving under the influence, possession with the intent to distribute and possession of drug paraphernalia.

A jury found Kifer not guilty of the DUI offense, but guilty of the drug charges, and 17 months ago, Clearfield County Judge Fredric J. Ammerman sentenced Kifer to five to 10 years in a state correctional institution.

Now, the Pennsylvania Superior Court has vacated Kifer’s sentence because it found that police, without having “reasonable suspicion” that a crime was afoot when they arrived at the parking lot, improperly detained Kifer.

The court ruled that Ammerman should have suppressed the methamphetamine found on Kifer’s possession, which means the evidence could not be used against him.

“An anonymous report that someone was ‘misparked’ and sleeping is not sufficient to support an investigatory detention,” according to an opinion authored by Superior Court Judge Daniel D. McCaffery. Judges Judith F. Olson and Mary P. Murray joined in the opinion.

In order to explain what occurred in the Kifer case, the Superior Court panel delved into the often-confusing subject surrounding police powers to conduct warrantless searches.

It explained there are three levels of interaction between police and citizens: mere encounters, investigative detentions, and arrests.

For a “mere encounter” to occur, police do not need to have suspicion that a crime was underway. Under the rules of a mere encounter, the person being approached by an officer is “free to leave” or not talk to officers, the appeals court said.

However, for police to detain a person, they must have “reasonable suspicion” that a crime was afoot.

An arrest occurs when officers believe they have evidence that a crime has been committed.

The argument in the Kifer case focused on whether police had enough evidence to suspect a crime was afoot when they arrived in the parking lot and found Kifer asleep behind the wheel of his Chevrolet Silverado, with the motor running.

Judge Ammerman allowed the methamphetamine on Kifer to be used against him because, he ruled, it was discovered during a “mere encounter.”

The defense, led by Clearfield attorney Joshua Maines, contended that police, upon arrival in the parking lot, immediately detained Kifer without evidence of a crime occurring.

The Superior Court opinion pointed out that upon arrival, the two officers boxed in Kifer’s vehicle so he couldn’t leave. The officers also demanded Kifer provide them with identification, and upon receiving it, Clark took it to his vehicle to check out the then-suspect.

Kifer testified that at that point, he did not feel “free to leave.”

“It is hard to imagine (Kifer) simply opting out of this interaction and driving away, no matter that there was apparently just enough space for him to do so,” the Superior Court opinion stated.

While stating the officers did not see Kifer driving or attempting to drive, the prosecution said they “acquired reasonable suspicion that he was driving under the influence,” after they awakened him.

The Superior Court retorted, “The problem, of course, is (Kifer) was already detained by then.”

The prosecution also likened the situation to a “welfare check” in which officers approached the sleeping driver because he might be in need of help. Such a “mere encounter” is to the benefit of the public, it was argued.

The Superior Court in the Kifer case stated police “can perform wellness checks without collecting evidence for subsequent prosecutions; there is nothing about the enforcement of search and seizure laws that should dissuade any first responder from assisting someone in distress.”

But, the court concluded that in the Kifer case, police made a conscious choice to surround the driver by placing their vehicles “fore” and “aft” of the suspect’s vehicle.

Maines, who represented Kifer on appeal — he was not the trial attorney — said the Superior Court decision means that the methamphetamine cannot be used against Kifer. As it stands, the case would have to be dismissed, he stated.

District Attorney Ryan P. Sayers, representing Clearfield County, said Tuesday he will request a rehearing of the case either before a different panel of Superior Court judges or a larger panel of the Appeals Court.

If the Superior Court remains firm in its decision to vacate the Kifer sentence, the DA said he will request review of the decision by the Pennsylvania Supreme Court.

Meanwhile, Kifer remains in custody at the State Correctional Institution at Mercer.

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