*1 оn her not to tell reneged promise Mother Pennsylvania, father, his COMMONWEALTH Appellant
her was not son that Appellant, exchange an promise Mother made in that both acknowledgement paternity assuming knew to be false. Even parties Appellee. ACOSTA, Miqueas assertions, I not appellant’s the truth of do fraud under believe he has established Pennsylvania. Superior Court of § 5103. Argued June out in the exception 3 The fraud set Filed Jan. statute, believe, I those instanc- addresses acknowledges paternity man es which a he child’s
because he believes is the father fraudulent mis- belief is based on reasonably
representations upon which not
relied. 5103 was meant Section agreements par-
cover collateral between that the man is conclusively
ties who know nonetheless reach
not father but who agreement about how will be-
some view, my future. the al-
have
leged pact Appellant and Mother between irresponsible only parties’
not reveals very this serious area of the
approach to
law, it no case. also has relevance protect party
The law does not simply
who, being certain he not the despite child,
biological acknowledges of a father
paternity of child. signed time Appellant At the he knew he was not the
acknowledgment, father; therefore, he was
child’s to the child’s respect
victim of fraud fraud, Absent he is without
paternity.
avenue of relief. *2 Benson, Atty.,
John S. Asst. Dist. Com., Doylestown, appellant. Parlow, Bensalem, K. for appel- Michael lee. card, P.J., displaying SOLE., Club DEL FORD BJ’s Wholesale
Before: , STEVENS, ELLIOTT, JOYCE, name. picture and MELVIN, MUSMANNO, LALLY- ORIE the officer informed [Acosta] When *3 GREEN, BENDER, and KLEIN JJ. the ID not match the name on did that registration on the name insur- MUSMANNO, BY J.:
OPINION , card, that his stated [Acosta] ance owned the vehicle. [Acosta] brother Pennsylvania 1 The Commonwealth two orally provided also the officer with court, appeals from the Order of trial birth, conflicting and could dates Motion granted suppression which his any reflecting produce identification Miqueas Acos- behalf of defendant filed on Monaghan birth. When Officer date of (“Acosta”)- ta We affirm. licensed, him he was asked whether February Opinion 2 In its dated had driv- said he a Minnesota [Acosta] 2001, the court set forth its suppression er’s license. findings factual follows: his back to Monaghan Officer went 16, 2000, John Mona- On June Officer car and called in the information patrol duty in Town- ghan was on Bensalem and the two regarding [Acosta’s] name County, Pennsylvania. Offi- ship, Bucks unable of birth. officer was dates Monaghan driving cer was southbound for any licensing information obtain police on Route 1 in a marked U.S. However, he did ascertain [Acosta]. red, he 1992 Ford vehicle when saw subject a different first name that a with by [Acosta]. minivan As Officer driven wanted and the same last name was minivan, Monаghan began pass he cheeks.[FN] writing for bad Wisconsin man- changed the [Acosta] noticed that re Monaghan The information Officer driving straight- ner which he was a general physical also included ceived on the ening up, putting both hands subject, of the wanted which description refusing to look at steering wheel fairly similar to that of [Acosta]. was the officer. investigation revealed Further [FN] passed Monaghan [Acos- After Officer Wis- subject was wanted in not the [Acosta] ta], tag York of the he radioed the New consin. or- headquarters in minivan into information, receiving this Offi- Upon tag whether the was der determine Monaghan cer radioed for assistance. informed headquarters valid. Police He the minivan approached then plate [Acosta’s] him that the license his vehicle. [Acosta] ordered leave suspended. had been Officer vehicle incident. Of- complied without [Acosta] over- Monaghan then activated his car’s rear Monaghan [Acosta] ficer led over to lights pulled [Acosta] head along minivan curb line of of the right-hand side of the road. he questions highway. repeated He licen- previously regarding the mi- had asked Monaghan approached Officer vehicle. Offi- ownership occupant for sure nivan and asked the sole license, Monaghan in- cer also asked additional registration and his driver’s revealed that questions [Acosta] which gave [Acosta] surance information. York to take traveling from New and insurance registration officer a valid Philadelphia. the minivan to someone not have responded card and did conversation, point during At some any asked for his driver’s license. When Hart arrived on identification, Officer Dennis presented [Acosta] form of time, full point scene in uniform and in until was still a marked [Acosta] patrol car. standing along Hart Officer near passenger’s curbside side Monaghan
Officer then informed patrol dog But when ar- vehicle. having [Acosta] were rived, placed in the back [Acosta] with drug trouble on trafficking Monaghan’s patrol seat of car. Officer highway. He [Acosta] asked whether he that [Acosta] stated had any weapons or narcotics reasons,” “safety was moved for al- “no,” vehicle. When [Acosta] said Offi- officer though the testified that Cosmo cer asked whether [Acosta] *4 dog, was not a it vicious albeit was he would allow him search the vehicle. “playful jump in nature” up. and would Although in acquiesced the [Acosta] However, times, dog at all the was request, request officer’s that was made and under the leashed control of Officer while registra- the officer retained the Kelliher. tion, card, insurance ID the card. While the seat of [Acosta] was back
The officer any way never indicated in vehicle, patrol Officer Monaghan, Of- [Acosta] free leave before he Goldstein, ficer Cosmo and narcotics Of- requested consent. The officer acknowl- ficer Gross for a searched minivan edged that he was not certain whether second time. a result As of the second he have permitted would [Acosta] to search, narcotics were found in steel leave the scene had he attemptеd to do compartment built into rear bench Furthermore, so. the entire conversa- the vehicle. was then hand- [Acosta] tion English. was in cuffed and advised was under arrest. When the requested, consent was At point, forty-five this minutes had was standing [Acosta] in front of one of elapsed stop. since the initial three on vehicles the scene with Although Hispanic [Acosta] their lights overhead activated. Addi- later in investigation Officer Mona- tionally, three officers—Officer Mona- ghan felt need to that Offi- ghan and Officer Hart and Der- Officer cer his Nieves advise Mi- [Acosta] ek Goldstein—stood next to each other randa all rights Spanish, nonetheless in close proximity to [Acosta] when conversations with at the scene [Acosta] requested. sent was was not [Acosta] English. were conducted in [Acosta] provided with any consent forms advis- En- told Officer Nieves that he “knew ing him that he a right had not to con- glish a bit” little but was more comforta- give sent and he did not a written con- ble speaking Spanish. short, sent. he was never advised any way that (cita- he was free not 2/15/01, Oрinion, Trial Court at 1-5 omitted). to the search. tions Officer Officer Gold- suppress 3 Acosta filed a Motion to stein searched vehicle while [Acosta’s] search, during claiming evidence seized Officer Hart directly stood next his under rights that the search violated During and watched him. this [Acosta] Pennsylvania States Con- United initial the officers did not discov- hearing, suppres- After a stitutions. any drugs. er sion court determined that the encounter thereafter,
Shortly the search was valid detention preceding Christine upon Kelliher arrived on the scene with a based a violation of the Vehicle Code. drug-sniffing dog suppression Id. at The court Up explained named Cosmo. uncontra- prosecution for the remains a continuous “there was time Offi- context of throughout the entire dicted when read
detention togeth- Monaghan and were v. [Acosta] cer Commonwealth record as whole.2 basis, suppression er.” Id. On Torres, A.2d 536- Pa. that Acosta was “seized” court concluded (2001). gave police time that he officers vehicle, and held recog law Pennsylvaniа case product of an was not the
“the consent be of interaction categories nizes three essentially and unconstrained choice and citizens. tween officers According- involuntary.” and was thus encounter,” or first of these is a “mere ly, suppression granted court information, need not be request for which narcotics seized suppress Motion suspicion, supported any level Thereafter, the Com- search. compulsion to which carries no official appeal pursu- the instant monwealth filed Mack, respond. toor Commonwealth 311(d).1 to Pa.R.A.P. ant 975 n. 341 n. *5 ¶ the Commonwealth Interest appeal, (Nigro, dissenting) (citing 4 On J. provided 637, 45, [the] that “[Acosta] claims 47 n. 3 S.J., 551 Pa. 713 A.2d of a lawful consent to search (1998)). [officers with] an “investi category, The second vehicle,” basis, the war- and on this by detention,” supported must be gative Id, justified. the vehicle was rantless search of This suspicion. interaction Appellant’s Reargument Brief on “subjects period to a and a suspect a 10, disagree. We detention, involve such of but does not as to сonstitute coercive conditions ¶ ruling by reviewing 5 When Id. of arrest.” equivalent an functional court, to our role is determine suppression or category, an arrest “custodial third supports the record as whole whether detention,” by probable supported must be findings, factual suppression court’s cause exists where cause. Id. “Probable legal drawn whether the conclusions offi within the the facts and circumstances findings free of error. from such are knowledge warrant cer’s are sufficient Zhahir, 545, 561 Pa. 751 v. Commonwealth caution the belief person of reasonable here, (2000). Where, as 1153 A.2d being is com has been or that an offense ruling from the of appeals Commonwealth v. (citing Commonwealth mitted.” court, are constrained suppression we 123, 203, Gibson, A.2d 206 638 536 Pa. presented by only the evidence consider (1994)). so much of the evidence defense and suppression 311(d) sively province within the of provides Appellate 1. Rule of Procedure appeal credibility wit- may take an determine the the Commonwealth court to interloсutory where right an order weight from accorded their as be nesses and appeal that the the notice of “certifies in Fitzpatrick, it 446 testimony. v. Commonwealth handicap substantially or will terminate 323, (1996). order 87, Pur- A.2d 325 Pa.Super. 666 311(d). prosecution.” Pa.R.A.P. cases, long the facts found as suant to these supported by the suppression court are Dissenting Opinion rejects this standard 2. The record, re-weigh evi- may not this Court re-weigh- scope engages review and findings. its own make factual dence and adopting its own factual ing the evidence and Here, supports the trial court’s the record so, ignores findings. doing the Dissent point can findings, Dissent factual pro- expressly precedent that well-established supported by the record. that is no fact not reviewing engaging from court hibits that it is exclu- These cases hold tactics. such
1083
¶
vehicle, given during
7
The Fourth Amendment
deten-
tion,
voluntary.
the United
protects
States Constitution
right
persons
country
in this
to be
¶ 10 It
is
Commonwealth’s
secure from
“unreasonable searches
prove
burden
defendant consent
Const,
“Thus,
seizures.”
amеnd.
U.S.
IV.
Cleckley,
ed to a
search.
558
warrantless
pursuant
protections
of the Fourth
520,
Bumper
(citing
Pa. at
738
at 429
Amendment,
may
before a
officer
548,
Carolina,
543,
391
88
v. North
U.S.
search,
generally
conduct
must
obtain
(1968);
20
S.Ct.
L.Ed.2d 797
Com
supported by probable
warrant
is
Silo,
v.
¶ 9 To
¶
establish a valid consensual
Strickler,
12
ob-
officer
search,
the Commonwealth must
first
along
men apparently urinating
served two
prove
given
that the
consent was
53,
Id. at
757 A.2d at
public
side
road.
legal police interaction.
v.
Commonwealth
questioning
veri-
886. After
the men and
Strickler,
47,
884,
757 A.2d
889
fying the documentation for
vehicle
(2000).
underlying
Where the
encounter is
driver,
the officer returned the
lawful,
found to be
voluntariness becomes
to the drivеr.
Id. at
757
documents
Here,
time,
the exclusive focus. Id.
Acosta does
At that
A.2d at 887-88.
officer
dispute
that his initial encounter with informed
defendant Brett
Strickler
(“Strickler”)
Monaghan
investiga
appropriate
constituted
lawful
that it was not
Thus,
analysis
tive detention.
our
focuses
the road and urinate on some-
along
solely upon
at
A.2d at 888.
property.
whether Acosta’s consent to one’s
Id.
757
outweighed the
failure to
to his
officer’s
began walking
back
officer
that he
the defendant
expressly advise
turned and asked Strick-
cruiser when he
detention.
following the initial
illegal in
fine to leave
anything
if
ler
there was
Id. at
¶ 18 At the time Monaghan requested
trolled substances.4
consent,
police
Acosta’s
thrеe marked
cars
with flashing
lights
overhead
and three
¶ Based
factual find-
upon
above
present
uniformed
officers
at
were
ings,
trial court found that the follow-
scene and stood
proximity
close
ing
present
coercive factors were
when
29, Monaghan
Acosta.3 Id. at
had not Monaghan requested
Acosta’s consent
registration,
returned Acosta’s vehicle
in-
(1)
the search:
of a prior,
existence
card,
surance
or identification.
Id. at 70.
detention;
(2)
withholding
lawful
suppression
At the
hearing, Monaghan ad-
(3)
documentation;
vehicular
mitted that he didn’t know whether he presence
po-
other officers
marked
would have
Acosta walk away
allowed
at
flashing lights
lice cars with
prox-
close
point
time. Id. at 64.
Acosta;
imity
of an
absence
search,
During
the first
express endpoint
in the
detention
proximity
Hart remained in close
of an
Acosta
form
admonition
the authorities
while
Officers
and Goldstein that Acosta
was free to leave.5 Each
factors,
alone,
searched Acosta’s
at
vehicle. Id.
64. The
standing
may
these
be
not
However,
officers recovered no evidence of con-
sufficient to establish coercion.
trolled
at that
factors,
substances
time.
presence
at 66.
of all of these
under
When
dog
circumstances,
a narcotics
totality
arrived
the scene
lead us to
prior
second
the officers
conclude that
Acosta’s consent was
footnote,
Opinion
In a
Dissenting
precise
im-
trial
5.The
court considered the
fac
plies that our resolution of
this case creates a
tors for consideration enumerated in
officers,
requir-
“Hobson’s choice” for
72-73,
(stating
“the
of an
Mack,
luggage
her
and asked to examine
choice[,]”
“the
re-
unconstrained
but
matched the claim
claim ticket. The ticket
coercion, express or im-
of
sult
duress
Id. The
given by
police.
number
Houston
a will overborne—under
total-
plied, or
him
accompany
to
to
officer asked Mack
Mack, 568
ity of the circumstances.” See
inside,
officer
office.
airport
Once
at 970. The
Pa. at
796 A.2d
evidence
warnings,
her
gave Mack
Miranda
finding
court’s
supports
the trial
permission to search the
asked for her
“voluntary”.6
Acosta’s consent was
informed Mack that
bag.
Id. The officer
¶
Dissenting
appears
The
Opinion
refused,
refuse,
if
she
she could
she
Pennsylvania
rely
Supreme
upon
to obtain a
would be detained in order
for its conclusion
Court’s decision Mack
Id. After Mack read
search warrant.
product
not the
that Acosta’s consent was
Form,
nothing
and said
Consent
Search
However,
factual scenario
of coercion.
minutes,
for about ten
she consented
readily distinguishable from the
in Mack is
bag,
the search.
Id.
her
the officers
circumstances of the instant case.
marijuana.
three bricks of
Id.
discovered
¶
of
(“Kil-
validity
Mack
her
Mack,
challenged
Sergeant
22 In
Kilrain
motion,
by filing
suppression
rain”)
Depart-
Philadelphia
of the
Police
Court
which the trial court denied. This
po-
call from a
telephone
ment received
sentence,
judgment
after
affirmed
Houston,
lice officer in
The officer
Texas.
Pennsylvania Supreme
which
Kilrain that
narcotics-
Texas informed
appeal,
appeal. On
granted allowance of
piece
luggage
to a
dog
detector
alerted
required to
the Mack Court was
determine
flight
on a
to Phila-
placed
that had been
“validly
Mack
consented
whether
Kil-
delphia.
Id. at
1087
Thus,
mitigating
context of
custodial detention is involun-
tention.
factors
tary
police
in Mack suspect
when
advise the
Strickler
significant
deemed
they
get a
if
would
search warrant
case,
are not
the instant
and do
present
suspect refused to consent to the search.
outweigh
not serve to
the coercive atmo-
Id.
the individual consenting into to the court, Order of the trial granted which Id. In concluding search.”7 that Mack’s Acosta’s Motion to suppress the evidence consent was voluntary, Supreme Court during seized the search.8 mitigating po- considered the factors advised Mack of her Mi- lice had officers ¶ 28 Order affirmed.
randa rights, and advised her that she
could refuse to consent the search. ¶ STEVENS, J., files a Dissenting ¶26 Here, Mack, unlike Monaghan Opinion. did not inform Acosta of his Miranda ¶ JOYCE, J., joins Dissenting
rights prior to requesting
Opinion.
addition,
search.
In
did
officers
not
not
advise Acosta that he was
J.,
MELVIN,
joins
31 ORIE
a factor deemed
Opinion.
Dissenting
significant
in both
Strickler
Mack.
Strickler,
Moreover,
LALLY-GREEN,
J.,
unlike
joins
there was no
express endpoint
to the initial
Opinion.
lawful de- Dissenting
Mack,
case,
(1996),
In
unlike the instant
officers
L.Ed.2d 347
Court
Strickler
probable
had
suspect
cause to
a narcotics
opined:
they
at the
requested
violation
time
Mack’s
I,
jurisprudence
Our
Article
under
Section
Mack,
сonsent to search. See
568 Pa. at
Constitution,
Pennsylvania
8 of the
howev-
(stating
at 971
that the officers sim-
er,
would
sustain consent search
Mack,
ply
"truthfully,”
advised
of,
ducted in the context
whol-
which is
get
would
a search warrant if she denied her
to,
ly
scope
ongoing
unrelated in its
Here,
search).
consent to
did not
detention, since
can be
there
no constitu-
probable
suspect
have
cause to
a narcotics
tionally-valid
independently
detention
or
violation.
following a
traffic
similar
absent
question
8. We further note that there is some
suspicion.
reasonable
regarding
constitutionality Monaghan’s
(citations omitted).
Id. at
STEVENS, Dissenting:
3 “The
Amendment9
F.ourth
is
consent to search
that
consent
valid
that
agree
Majority
1 I
with the
Offi-
ques
and
is a
voluntary,
‘voluntariness
be
Monaghan requested
cer
Acosta’s consent
from the
of fact to be determined
all
tion
an
that was
during
detention
Robinette,
v.
519
circumstances.’” Ohio
however,
I
de-
disagree,
its
lawful.
33,
417,
40,
347
117
136 L.Ed.2d
U.S.
S.Ct.
that
consent was
termination
(1996).
it is
“voluntary”
A
when
consent is
A review all
factors
competing
coerced.
essentially
“product of an
free
pertinent
inquiry
voluntariness
result of du
unconstrained choice—not the
leads to the conclusion
Acosta’s con-
coercion,
implied,
a
express
or
or
or
ress
product of
sent was not the
an overborne
totality
of the
will overborne—under
was, instead, a
will but
deliberative elec-
Robinette,
See, generally,
circumstances.”
The
fails
all
Majority
tion.
to consider
417;
40,
Mack, 568
1089
loth,
fact,
of
is
aspects
citizen-police
supra).
interaction
In
there
not even
such
length
assign
as:
and location of the
or
presumption
invalidity
of
detention;
use of
detention itself
weight
of
when a citizen
ment
extra
to
obtaining consent;
of
leverage
the use
explicit notification that
consents without
restraints;
physical
aggressive
use of
be-
cooperate.
she was free to refuse to
or
any
havior or
of
or
language
use
tone
194,
Drayton, 536
United States v.
U.S.
the officer that was not commensurate
153 L.Ed.2d
S.Ct.
circumstances;
any
with
lack
of
(2002).
is a
consent
Neither
defendant’s
advice to the
of
accused
his constitutional
involuntary
given
it is
at a
simply because
rights;
questioning
repet-
whether the
time when the defendant knows the search
prolonged;
itive
use
or
of subtle
artful
produce
will
evidence of
crime. See
questioning; and the claim of lawful au-
Bennett, 2000
United States v.
U.S. Dist.
thority to conduct a search
if
even
consent
(E.D.Pa.2000)
(height
*26
Lexis
Id.; Mack,
Strickler,
is
supra;
withheld.
a guilty
ened
that
citizen
sense
coercion
supra.
feels at the notion
a consent search not
¶ 5 No one
factor
the voluntariness
inquiry).
relevant to the voluntariness
Strickler,
inquiry
controlling.
is
supra.
Majori-
6 Both the lower court and the
problem
“The
of reconciling
recognized
factors,
ty largely
in-
overlook such
legitimacy of consent searches with the
give
weight
fact
stead
determinative
requirement
any
be free from
that the detention had not reached an end-
aspect of official coercion cannot be re
point,
driving
re-
papers were not
by any
solved
infallible touchstone.”
turned, and that
several officers were
Schneckloth,
atU.S.
an unlawful to use never used or threatened rule).11 The exclusionary application making never stop; apart force from indisputably stop a traffic are conditions of aggressive with an or down on Acosta bore than more to citizen are burdensome body language, or disapproving voice or en- a “mere or consensual conditions of believed Acosta with a claim he counter,” ongoing in- fact that removed the deten- running drugs; nevеr has nei- been effected vestigative detention easily-visible road- open-air, tion from the asking from precludes ther an officer location; never used or threatened side the con- nor invalidates citizen consent fatigue or frus- protracted detention to use Rather, to the given. pursuant sent totali- Acosta; conditioned trate never test, ty of circumstances we look grant- on ability to leave innocence investigative manner of the quality and consent; attempted to and never ing objective on the its effect detention and by claiming could ob- leverage consent if given consent was citizen determine vehicle if con- authority to search the tain voluntarily. questions asked of withheld. The sent was hand, to the facts Acosta were tailored The facts before us show that is no plain direct. There and were manner Which Officer Monaghan engaged suggestion that Officer investigative detention favors ducted fact, Lopez was holding limited In facts limited value. In our has cases, inquiry unlawfully detention the voluntariness retains a driver's where an officer has simply turn on whether citizen despite having accomplished cannot identification go. free to It to believe he is lost reason stop. Lopez relies purpose traffic instead, must, the circum- turn on whether principle seizures on that unconstitutional give reason believe stances of seizure Therefore, we subsequent taint consents. request for con- he cannot refuse an officer’s Lopez commits that where an officer held in words, inquiry sent to search. In other withholding seizure an unconstitutional to feel he retains asks if the citizen has reason detaining a driver for valid identification and investigation from power to restrict the questioning to the initial unrelated further private apparently are to remain areas that by independent reason- unsupported though he has no rea- without consent even any subsequent suspicion, fruit able investiga- he can terminate the son to believe suppressed. poisonous that must be tree conducting altogether. inquiry, tion per preclu- Clearly, we se never advocated all an accommodation of are to make courts voluntary an officer whenever sion of interests, as and individual competing societal driving papers. holds Schneckloth, 412 U.S. is done 224-225, infra. S.Ct. 2041. 8, infra, its on reliance 12. See footnote Hoak, 700 11. In dicta Commonwealth Bennett, supra, for the conclu States v. United (en banc), ex- (Pa.Super.1997) we A.2d 1263 drug profile courier that Acosta fit sion holding with panded Lopez beyond actual its warranting investigative detention its own passage [citizens] court has held "[t]his a con to conduct justifying stop] [during while a traffic cannot consent drugs. sent search for Hoak, holds their identification.” officer omitted). (citation Lopez 700 A.2d at Indeed, trickery. subtleties or Officer unresolved. So too would a reasonable *13 Monaghan asked but once Acosta’s for person safety understand the initiative of consent to a and agreed. Acosta to alert other activating lights overhead presence stop. drivers of roadside ¶ subjective 8 Acosta’s attributes like- for presence As of two other officers weigh wise favor of his crediting choice scene, they actively participate did not to voluntary consent as a one. Acosta is pre-consent investigation in the of Acosta mind, an ostensibly adult man of sound but, instead, position took the neutral of intelligence, normal capacity for Strickler, standing nearby. supra See exercising Though Spanish will. is (presence back-up of not significant Acosta’s first officer language, he demonstrated sufficient where he not an active proficiency English participant).13 for this exchange to conclude that the be- Finally, Acosta was not expressly tween himself and Monaghan Officer consent, apprised his right of to withhold knowing meaningful. Acosta an- such explicit notification need not be him, questions swered all to put including consent, given to validate required those “yes” more than supra. application of Fair the reasonable “no” answers. When asked about dis- standard, moreover, person requires us to crepanсies documentation, in his he did find that a sincere for request not sit in silent confusion or claim not to made to seizure least tends understand, he articulated explanations. imply right to refuse consent. The claim Acosta’s of possessing a Minnesota very fact that sincere for consent Driver’s presentation License and his of a was made in this case must be factored in department store ID card suggested also inquiry. the voluntariness As the United enough adeptness at using and under- Supreme States Court stated: standing English to language obtain law, In a society concept based on of services. Even Acosta’s ex- apparently agreement and given consent should be navigation tensive highways of across a weight dignity its own. Police of multiple suggests state lines a comfort in full Officers act accord with the law with English language signs. directional when ask It citizens consent. ¶ Additionally, the degree to that the the rule of law for reinforces the citizen case involves a stress-inducing show of police advise the of his or her wishes authority not uncustomary tо a stop, traffic police for the to act reliance on application of the person reasonable stan- that understanding. When this ex- dard dispel should the notion that such a change place, dispels takes it inferences authority show of controls the outcome of of coercion. inquiry. example, voluntariness For Here, Drayton, 122 S.Ct. at person expect reasonable would not right inference that Acosta retained the officer to return driving papers his supported send him on when refuse consent is the officer’s way questions re- mak- garding validity making of such and transition from directives to papers operate ing authorization to a request. vehicle remain Furthermore, Indeed, presence Majority Opinion find will force back-up patrol necessarily possess suspicion undermines volun- officers who goal placing make tariness runs afoul of to accommo- the Hobson's choice either competing option preserve date ests, societal and risk to the vital individual intеr- themselves at society’s ensuring safety ensuring requesting consent or their own interest investigating great import. safety option. officers to the detriment of that what Indeed, drug-sniffing dog discover Officer directed took not, over, pro- officers could pull directed him to three
Acosta to a confidence that explain to reflect appear duce directed him dis- would papers, information, securely hidden rather drugs and directed were crepancies from overborne will purportedly him out vehicle. than of the Regardless of permission questioning. for Acosta’s to brief never asked mind, however, interaction, subjective state of conduct this and Acosta’s phase objective of the case do not realities so it should have been clear to Acosta that *14 involuntary to an consent. cooperation point was mandato- evoke then, ex- ry, discretionary. not But simply 13 To find otherwise because change a marked undergoes difference a given during traffic consent not Monaghan form. Officer doеs direct performed officers and before two other search, to yield Acosta to a vehicle he asks lights is a failure to accom- activated to permission conduct a con- society’s legitimate need14 for modate dialogue a search. Such transition suspicion. sent searches amid reasonable citizen, any free of between officer sure, To be our courts have accommodated investiga- to lawful coercion extraneous a totality-of- competing interests with the detention, alerts citizen that the tive test to find con- balancing circumstances investigation longer no but compulsory is voluntary under circumstances far sents only may continue on his consent. act present than were here. more coercive pro- request of a sincere thus infuses due Mack, (holding that Miranda supra See into rights police/citizen cess encoun- explicit to ad- warnings and time consider ter, finding itself of militates favor off- right of to withhold consent visement any response to be volun- given consent conditions, which extremely set coercive tary. ter- airport of woman in included: arrest officer; Therefore, by lug- minal one confiscation of the manner of the lawful office, interroga- investigation gage; private reaction thereto closed-door and Acosta’s by sergeant two law opinion tion conducted Majority’s belies the that Acosta’s officers, em- by with two airline consent was coerced. Aided neither enforcement to woman perti- ployees present; also statement overt nor subtle tactic identified as drugs in inqui- officers believed she had voluntariness nent under established leverage ry, luggage; attempt a and an genuine officer issued search, authority war- with claim to obtain conduct a consent and Acosta sent consent).15 Indeed, readily ultimately as it rant and override refusal to agreed. here, Where, may prevent will. coercive factors identi- false accu- 14. Consent searches to, of, arrest, sation and further embarrassment critical in Mack—an backroom fied аs innocent, apprehension and enable interrogation, belief that detainee assertion of investigative guilty where no other tool is and, especially, attempt guilty, to lever- is available. "In situations where authority age through a claim of consent activity, lack some evidence of illicit but have absent, only follows it override refusal—are search, probable cause arrest or requires balancing test less in the that the by may only be the authorized valid consent offsetting way measures. A well-settled obtaining important and reliable means of point requirement that example of is the Schneckloth, evidence.” U.S. warnings be read before the com- Miranda S.Ct. 2041. interrogation, custodial mencement commencement of need not be read before because shows how 15. Mack instructive it questioning detention. See height- offsetting may correspond to factors Schneckloth, S.Ct. 2041 U.S. at to avoid an overborne ened coercive factors ¶ Accordingly, I would find Acosta’s voluntary, and would reverse the the suppression
order of
court.16
("Miranda,
course,
investiga-
Monaghan’s suspicions
did
reach
about Acos-
Officer
questioning
person
custody,
authority
properly
tive
of a
not in
ta’s
over the van were thus
directly analogous
aroused,
which is most
situa-
concerning
from
questions
and his
assuredly
tion of
it
did
where the van came and to where Acosta was
questioning ought
not indicate that
such
be
taking
quite justified.
it were
When Acosta's
coercive.”) (citation
inherently
deemed
omit-
response
described
route known to Officer
ted).
drug
commonly
used
as one
runners,
had before him
Major-
opinion,
At the conclusion of its
sum of evidence that allowed for the reason-
ity
validity
doubts the
constitutional
suspicion
drug
able
that Acosta was a
courier.
investigation
drug possession.
Bennett,
into
If the Ma-
supra,
2000 U.S. Dist. Lexis
*15
jority
13472,
(E.D.Pa.2000)
believes that
detention of Acosta
(person’s unusually
*26
legitimate scope
exceeded its
and
behavior,
duration
carrying luggage
ap-
nervous
he
consent,
prior
then the
own,
peared unlikely
arriving
from
Majority should have confined its review to
drug
having
city,
known
source
and
no identi-
predicate
analysis,
seizure
deemed
fication,
drug
profile
satisfied
courier
which
unconstitutional,
of
ap-
seizure
Acosta
and
justified Terry
subsequent request
plied
exclusionary
suppress
rule to
search) (citing
for a
United
v.
States
fruits
aof
tainted consent search.
Ohio
v.
1,
Sokolow,
1581,
490 U.S.
109 S.Ct.
Robinette,
519 U.S.
117 S.Ct.
(1989) (holding
government
L.Ed.2d
(1996) (request
L.Ed.2d 347
for consent unre-
greater showing
need not make
under reason
scope
purpose
ongoing
lated in its
of
suspicion
able
standard where case involves
detention,
independently
supported
not
Freeman,
drug
profiling)).
courier
See also
by
suspicion,
is its own unlawful
supra, (acknowledging
ner
that evidence of
exclusionary
applies
detention to which
rule
accompanied by
vous behavior
other indica
therefrom);
suppress any
consent derived
activity,
taking
tion of criminal
such as
route
Royer,
Florida v.
460 U.S.
103 S.Ct.
dealers,
heavily
by drug
pertinent
traveled
(1983);
OXFORD
CHURCH, Appellant,
v. COMPANY, INC.,
WEIL-McLAIN Mutual In
American Manufacturers Company, Commonwealth
surance
Pennsylvania Department of Labor Industry, Thomas Hindman W.
Plumbing, Heating & Air Condition
ing, Plumbing Heating, Inc., & Jack’s Company, Oil South Penn Gas
SICO Company.
Company, Al Slack Gas Presbyterian Church
Oxford Inc., Company, American
Weil-McLain
Manufacturers Mutual Insurance Pennsyl
Company, Commonwealth *16 Department
vania of Labor & Indus
try, Plumbing, Hindman Thomas W.
Heating Conditioning, Air Jack &
Plumbing Heating, Inc., Oil & Sico Company,
Company, Penn Gas South Company.
Al Slack Gas
Appeal Company, Appellant. of Sico Oil Pennsylvania. Court of
Superior 9, 2002.
Argued Oct.
Filed Jan. then, criminalily suspect illegitimate operation inaction amidst reason to vehicle afoot, may suspicion drug ultimately, the van as even where operation of run- probable cause. Sound Pa. at 69 ner. See n. amount public good demands (quoting work service of A.2d at 896 n. 18 United States Jones, (10th Cir.1995) (“sub- circumstances an officer under 44 F.3d developed present case sequent question- maintain or concurrent detentions permit- quo detention ing justified only has status with are when the officer continued ting investigation connection suspicion' illegal into driver’s transactions ‘reasonable crime”) (cita- cargo. vehicle’s drugs any vehicle and into the other serious added). an omitted)) a consent search is A to conduct (emphasis See also tions Robinette, (an furthering an inves- accepted such S.Ct. 417 manner 519 U.S. at tigation. subjective intentions notwithstand- officer’s Monaghan’s re- Accordingly, I ing, invalid find Officer a continued detention is not action). permissible a consent search objective justify quest conduct where reasons constitutions. Monaghan’s investigation both state and federal into the under was, therefore, directly request was to a lawful drug related possibility running investigative supported principle underlying Terry, detention and consistent with traffic, evolving suspicion stops, that Acosta namely, and other drugs. illegal transporting that an officer need not feel constrained