Commonwealth v. Kemp, 2008 PA Super 274

Topic: Motor Vehicle Stops-Ortiz and Johnson

Summary: When a defendant is told he is free to leave in a motor vehicle stop and the police officers engage him before he leaves the scene, the police officers are not required to disregard the facts observed during the initial stop. This en banc decision overturns Commonwealth v. Ortiz, 786 A.2d 261 (Pa.Super. 2001) and Commonwealth v. Johnson, 833 A.2d 755 (Pa.Super. 2003).

Illustration: Kennedy Decatrick Kemp and Kandice Kyles were traveling in a vehicle when they were pulled over for illegal tints. During the first stop, the officers noticed an overwhelming odor of air fresheners as well as Kyles’ nervous behavior. After issuing a warning, the officers told the pair that they were free to leave. Before they left the scene, the officer re-engaged the pair based upon observations made during the initial stop. The Superior Court concluded that the second stop was supported by the facts observed during the initial stop. Additionally, the facts observed during the first stop did not have to be disregarded, thus overruling Commonwealth v. Ortiz and Commonwealth v. Johnson.

http://www.pacourts.us/OpPosting/Superior/out/e03002_07.pdf