Commonwealth v. Carroll

Appellant, Pennsylvania, COMMONWEALTH CARROLL. Richard Pennsylvania. Superior Court of Argued April 1993. July 1993.

Filed Bums, Jr., Hugh J. Asst. Dist. Atty., for Philadelphia, Commonwealth, appellant. Defender,

Paul M. George, Asst. Public Philadelphia, appellee. CAVANAUGH, WIEAND, McEWEN,

Before: CIRILLO, SOLE, BECK, TAMILIA, DEL HUDOCK, and JOHNSON JJ.

CIRILLO, Judge. pre-trial from a the Commonwealth appeal by This is an County of Philadelphia Pleas order of the Court Common at the packets of 47 narcotics suppressing the introduction Carroll.1 We trial of Richard reverse. warrant, arrested, on November without a

Carroll of a controlled substance charged with possession and with the intent of a controlled substance possession deliver. offi- on two uniformed

At 11:21 a.m. November Reinecker, cers, on while routine Milligan and John Joseph vehicle, standing on the saw two men in a marked patrol Street, Officer Reinecker told Philadelphia. sidewalk of Olive men, one he Milligan investigate Officer wanted gave no reason. spoke

Both left car and Reinecker patrol officers the Officer man, The second suggested investigating. to the man he had Carroll, pockets jacket. with hands in of his stood his the approached hand over his Milligan, gun, Officer with his him his hands out of his and started to ask to take Carroll pockets, into on the west side of alley

Carroll turned and fled an Street, in Milligan and fell the debris. Officer slipped Olive 10 to 15 feet saw two followed and at distance of a Carroll tinted, containing brown a white substance packets heat-sealed alley. fall from into the debris in the pocket Carroll’s who face Milligan approached Officer Carroll was still down drew told to gun, in the debris the his Carroll alley, his back. Officer stay on the with his hands behind ground him, Carroll, Milligan prone handcuffs on the still arrested put finding his additional brown pockets, and searched coat down a second Milligan tinted Officer Carroll packets. patted then the two time in a search for retrieved weapons and the debris. After Carroll dropped packets brown tinted from suppression substantially 1. The has certified that the Commonwealth Dugger, handicaps prosecution. v. 506 Pa. the Commonwealth (1985). A.2d 382 station, taken was to custodial search revealed in cash. $404.00 disputes Commonwealth several of the suppression findings.

court’s argues The Commonwealth Officer Milligan did not his have hand on his that he did gun, pursue not Carroll, and that he did not Carroll until after he approach fallen had and dropped drugs.

When we review a are suppression ruling, we bound court, reasonable factual findings suppression Common- Hamlin, wealth v. 503 Pa. unless we an find abuse or an discretion error of law. Commonwealth Cortez, (1985). 507 Pa. A.2d Credibility determinations be may not disturbed on appeal. Common- v. Whitney, are, wealth 511 Pa. A.2d We therefore, despite the vigorous argument Commonwealth’s bound contrary, accept the reasonable findings factual Hamlin, of the suppression court. supra; Whitney, supra. Under questioning by assistant district attorney suppression hearing Officer Milligan testified he had his hand on gun his when he approached Carroll.

Q: point what happened you [A]t what did your draw gun specifically in to where saw relationship you the packets go the ground? Well, run,

A: he when started to I had actually hand on my the gun But, because he had his pockets. hands his it happened gun so fast and I drew my as he on laying and after ground packets were on ground. When we look the we testimony persuaded are that the suppression finding court’s of fact that Milligan Officer had his on hand his holstered gun when he chased Carroll reason- Hamlin, able. supra; Whitney, supra.

The question before this court is whether the police officer’s pursuit of Carroll was a If it not a seizure. was seizure then the were found drugs lawfully the in finding drugs these gave circumstances rise the cause to probable arrest and seizure, If search Carroll. the a pursuit was then when or dropped drug packets Carroll discarded the the abandon-

5 aban- drugs If the were impermissibly coerced. ment was seizure, that he the demonstrate then officer must doned after or a the seizure reasonable cause to make probable had either Terry stop and frisk. suspicion reasonable a will question Pennsylvania of whether This case raises the recently of seizure constitutional definition follow the federal 621, 111 v. 499 U.S. S.Ct. adopted in California (1991), a 1547, will to follow line 690 continue 113 L.Ed.2d greater degree a a which afford Pennsylvania suspect cases constitution.2 protection under state to the U.S. Constitu- Seizure under the Fourth Amendment tion in United by was defined Justice Stewart

Seizure Mendenhall, 544,100 1870, States v. 446 64 L.Ed.2d U.S. S.Ct. (1980) the U.S. Su (plurality opinion) adopted Chesternut, 573, 108 567, Michigan v. in 486 U.S. preme (1988): 1975, 1979, “A has been person 100 L.Ed.2d 565 S.Ct. if, only meaning Amendment seized within the Fourth incident, a surrounding in of all circumstances view he not free to person would have believed that was reasonable the Mendenhall as reason leave.” This has become known able test for when a seizure occurs. person from the Chesternut adopted

The definition in followed Ohio, v. Terry 19 n. formulation U.S. S.Ct. Pennsylvania D. have not 2. Two cases decided since the Hodari decision straight In pointing a created a line decision. Commonwealth Peterfield, Pa.Super. appeal Pa. A.2d denied 533 (1992), Elliott, Judge Ford over the "vehement” dissent finding Kelly compelled D. that there Judge reasoned that Hodari panel member in the result. was no seizure. The third concurred "acting passerby a officer that someone was alerted a Peterfield authority suspiciously," approached officer and with show of fled, leaving behind an "stand fast.” Peterfield ordered actor to handgun. unregistered, The dissent ar- loaded .25 caliber automatic case, Peterfield, gued as does the dissent in this priva- greater protections of jurisprudence constitutional afford citizens cy does Fourth Amendment. than panel court in Commonwealth v. recent of this decision raising although Pa.Super. A.2d 1211 Harper, 416 issues, solely conformity with Hodari D. on same factual decided considering grounds question of a constitutional without federal protections. divergence of constitutional state and federal 6 1879 n. 20 L.Ed.2d 889 that a seizure occurs officer, of physical

“when the means of force or show of authority, way liberty has in some restrained the a citizen.” D., Hodari held pursuing fleeing suspect a is not a seizure Fourth Amendment for therefore, a rock of cocaine discarded purposes; during was not the fruit of an and need be pursuit illegal seizure not suppressed as evidence at trial. D. Hodari

The more a question narrow was whether “show of without authority” more is a seizure. The court held it was arrest or requires physical not. An either force at-, Id. 499 submission to of the assertion authority. U.S. 111 S.Ct. at There is no based on of 1551. seizure show Id, Inyo Brower v. authority complied citing unless it is with. County, (1989). U.S. S.Ct. 103 L.Ed.2d 628 No search or occurs seizure when a officer examines materials, abandoned even if the act of abandonment occurs D., Hodari Hester v. United during citing chase. States, U.S. S.Ct. 68 L.Ed. 898 D.,

In Hodari their did began pursuit when officers they not have a lawful basis either stopping arresting suspects.' Hodari D. holds authority that a show of alone is seizure; not if the only subject submits to the show or if authority officer makes contact with the subject Id at-, is there a seizure. U.S. S.Ct. at 1548. Thus, Hodari D. Mendenhall reasonable per- modifies the test, son seized when person reasonably is he believes he is leave, not free to hold that seizure is not effected an until has officer used restraint or the citizen has physical submitted D., Since Hodari a show of authority. for Fourth Amend- purposes, ment authority a show alone not a seizure. hand, In the Hodari D. there case at the criteria no time seizure at the cocaine fell packets out pockets. There was a of authority” Carroll’s “show without seizure. requisite submission create a supra. I, Pennsylvania Consti- 8 of the Art. Section

Seizure tution not a pursuit do the of Carroll as we that

Finding was Amendment, the seizure in terms of Fourth or the drugs the of whether question we turn now to Carroll The Pennsylvania the Constitution. were seized in violation of afford than may greater protections Pennsylvania Constitution Edmunds, Pa. v. the U.S. Commonwealth Constitution. (1991) adopt “good (declining rule). exclusionary “important It is faith” exception analysis of the necessary independent and to undertake an time a of that provision each funda Pennsylvania Constitution at 586 A.2d 894- implicated.” mental document is Id. at 95. independent

The Edmunds court to an steps outlined an grounds of state constitutional which are: exami- analysis article, history of the of its nation the text constitutional states, question of the in other application, jurisprudence provi- and considerations behind the constitutional policy sion. Id. I, Pennsylvania pro-

Article section Constitution vides:

Security from Searches and Seizures persons, in their people 8. The shall be secure houses, from possessions unreasonable searches papers seizures, or any and no warrant to search to seize place describing issue them as any person thing or shall without be, cause, nor nearly may probable supported by as without to by oath or affirmation subscribed the affiant. I, §

Const. Art. 8. of the first cases to consider exclu- One Ohio, 1684, sionary Mapp after 367 U.S. 81 S.Ct. rule v. (1961) applicable L.Ed.2d it made to the states 411 Pa. Bosurgi, Commonwealth Pennsylvania Supreme adopted Mapp Bosurgi, which an prohibits product which use evidence is the 65,190 Id. 411 A.2d at unreasonable search seizure. Pa. at Bosurgi Mapp 309. read as state to allowing The court each .an independent make assessment what was a “reasonable 65,190 search and seizure.” Id. 411 Pa. A.2d at 309. Bosurgi was whether a search based on a issue warrantless it vague description was reasonable. The court found subject acquiesced was because the or submitted to Bosurgi suggests search. the state jurisprudence search and seizure has jurispru- been co-extensive with the Amendment; Bosurgi dence of the Fourth but reserved to the right state the to define what is a reasonable search or seizure.

Pennsylvania courts have not hesitated to articulate sepa- Ed- holdings. See rate state constitutional for their grounds munds, supra; Zettlemoyer, see also v. Commonwealth 500 (death 16, (1982) Pa. A.2d penalty jurisprudence 454 937 co- Henderson, extensive); Commonwealth v. 349, 496 Pa. (1981) (interested-adult A.2d 387 protecting rule minors from law); Common- self-incrimination has its foundation in state wealth v. 244, (1975) Triplett, 462 Pa. 341 A.2d 62 (separate Miranda). Pennsylvania grounds constitutional for When confronted with a precedent federal which to alter appears, precedent, state the state court must re-examine the source of Edmunds, the Pennsylvania precedent. supra.

The Pennsylvania considered Supreme Court the question police whether created forced or pursuit coerced abandon- ment in Commonwealth 320, Jeffries, v. 454 Pa. 311 A.2d 914 (1973). “quickened pace” Jeffries his on walking the sidewalk police when a car side. pulled along Police observation quick- ly turned to when He pursuit jacket Jeffries ran. discarded a which, found, during the chase it was had foil packets 322, Id. at heroin in the pocket. 311 A.2d at 916. The court flight arrest, held that alone is neither probable cause for nor Terry is it alone reasonable a suspicion justify and stop Id. frisk. Pa. at 311 A.2d at 917. The court held without cause or probable suspicion, articulable the police have unlawfully coerced the abandonment of the incriminating Id. property. 311 A.2d at 918. found in Commonwealth Pennsylvania Supreme (1977), when the Jones, A.2d 474 Pa.

v. Id. at seizure has occurred. stop a citizen to a order in judged found that seizure at 839. The court A.2d circumstances, and the the demeanor including of the totality of the encounter. and the location words of the officer person, would a reasonable objective: Id. The standard is crime, Id. at restrained. being believe he any innocent 839-40; v. 372-73, see also 378 A.2d at Commonwealth In Com- Williams, 429 A.2d 698 Pa.Super. Barnett, 484 Pa. monwealth which is suspect, between approaching

court distinguished him, is. The court seizure, which attempting stop not a and they fleeing suspect, pursued held that when the officers 215-16, contraband. Id. at the abandonment of the coerced 1021. 398 A.2d at line, which in the cases Pennsylvania

Each Jeffries pro- distinguishable establishes a argues greater Carroll constitution, the right defines tection under the holding Amendment. The in terms the Fourth protected instance, right had no is that “it is clear the Jeffries, of the police ‘seize’ and the action to ‘arrest’ or Jeffries violation of arresting him him a was subsequently chasing 325-26, 311 Id. 454 Pa. at right.” Fourth Amendment his Jones, “the initial confrontation A.2d at 917. Likewise within the of the purview ... a seizure Jones constituted 374, A.2d at 840. Conse- 474 Pa. at 378 fourth amendment.” as com- has read v. Ohio Pennsylvania Mapp while quently, definitions of what the states establish their own manding that seizure, search or and what is an unreasonable is a reasonable relied on the jurisprudence has Bosurgi, supra, Pennsylvania definition of Amendment to inform the state’s of the Fourth result, Jones, Pennsyl- As a Jeffries, supra; supra. seizure. closely parallels of search and seizure jurisprudence vania may represent Hodari D. of the Fourth Amendment. jurisprudence, Amendment from traditional Fourth departure Hodari it in his dissent to D. as Justice characterized Stevens it in her dissent Ford Elliott characterized Judge 10

Peterfield, supra, there nothing but law prevents logic. which us from its following Edmunds test The fourth of the if prong to determine we greater should find for the individual under Penn- protections sylvania’s constitution than those afforded under the U.S. Constitution that we look at of the requires jurisprudence question in other states. Twenty-three states have found reasoning of Hodari D. Five states have found applicable.3 Arkansas, 383701, Ark.App. 3. See Finch v. 1992 WL 1992 Lexis 783 (cocaine seized, by fleeing suspect relying discarded not on abandoned D.); Johnson, 1, Cal.App.3d Cal.Rptr. Hodari 114 v. 231 282 California (1991) (a person reasonably believing he neverthe is not free to leave is purposes not less detained Fourth Amendment until he either officer, authority physically submits to that show of or is seized D,); U.S., (D.C. relying on Hodari Allison v. 623 A.2d 590 Court of 1993) Appeals, (suspect away gun, not seized until after he threw gun property suppressed, was therefore abandoned and should not be D.); Delaware, (Del.1991) relying on Hodari Robertson v. 596 A.2d 1345 (definition D.); Jenkins, of seizure from Hodari v. 616 So.2d Florida 173 (arrest (Fla.App.1993) requires physical either force or submission to D.); authority, relying the assertion of Georgia, on Hodari Hunt v. 344, (1992) Ga.App. (suspect fleeing 422 S.E.2d 75 car who discard authority, ed cocaine relying had not submitted to a show of on Hodari D.); (1992) Rawlings, (suspect Idaho v. 121 Idaho 829 P.2d 520 meaning seized within the of the Fourth Amendment when he submit D.); Ramirez, authority, citing ted to an officer’s Hodari Illinois v. (1993) Ill.App.3d (applying 184 Ill.Dec. 613 N.E.2d 1116 violation); rationale Hodari court found no Fourth Amendment Indiana, (if (Ind.App.1993) Williams v. 611 N.E.2d 649 a reasonable person go, protections would feel free fourth amendment are not D.); triggered, citing Johnson-Hugi, Iowa v. 484 N.W.2d 599 (Iowa 1992) case); (principles applied of Hodari D. Louisiana v. Harris, (Hodari (La.App.1993) controlling, strong 613 So.2d 807 D. but argues supreme adopted dissent that state court has not Hodari D. and greater protection); Maryland, that state law would afford Henderson v. (1991) ("we Md.App. hold that Article Rights appellant any greater Md. Declaration of does not protec afford tion than that of the Fourth Amendment to the United States Constitu tion,” D); Laureano, adopting Hodari Massachusetts v. 411 Mass. (1992) (specifically question 584 N.E.2d 1132 did not reach the greater protection whether the state constitution afforded than does the D); Hawkins, Michigan Fourth Amendment after Hodari 439 Mich. (1992) (defendant drugs 479 N.W.2d 705 abandoned before he was seized, E.D.J., D); following Hodari In the matter of Welfare of (no (Minn.App.1992) depart N.W.2d 829 historical basis to from Hodari D); Nicholson, (arrest (Mo.App.1992) Missouri v. S.W.2d physical authority, defined as restraint or submission assertion D); Ackeren, 479, relying on 242 Hodari Nebraska v. Van Neb. 495

11 than does the afford greater protection their constitutions that Hodari D.4 following Fourth Amendment Two is public policy. Edmunds test prong The final of the first and thinking: our public guide considerations policy to be free a citizen right most fundamental is The second by invasions the police. privacy unwarranted in is advanced although it one compelling argument, less the number Hodari curtailing benefit is public police chases. from right to be free

A violation of the constitutional the moment searches and seizures occurs at unreasonable in an search, found any contraband not at moment v. trial. Katz United is admitted at unreasonable search States, (1967); 347, 507, 19 L.Ed.2d 576 88 S.Ct. 389 U.S. Therefore, de Bosurgi, supra. policy Mapp, supra; public designed to reduce the number our of law be mands that rule (1993) (suspect is an officer with a drawn not seized when N.W.2d 630 runs, D.); suspect relying Hodari New gun and the on tells him to freeze 310, (fleeing (App.1991) 243 Esguerra, v. 113 N.M. 825 P.2d Mexico seized, D.); suspect relying is Hodari North Carolina v. McDan not on (seizure iels, (1991) from N.C.App. 405 358 definition 103 S.E.2d Ritter, (North D.); Dakota v. 472 N.W.2d 444 Hodari North Dakota Barnwell, 1991) 1993 (principles guide analysis); D. Ohio v. Hodari 29, 1993) (Ohio App. App., April WL 1993 Lexis 2293 Ohio voluntarily governed by Hodari (suspect in a case discarded contraband Rose, D.); (holding (Tex.App.1992) of Hodari Texas v. 844 S.W.2d 911 constitutions); Higgins, governs under state federal Utah v. D. both (Utah 1992) (seizure D.); App. v. 837 P.2d 9 defined Hodari Vermont 1992) (seizure (Vermont D.); Sutphin, A.2d 792 from Hodari Wood 614 (1993) (suspect arming Virginia, son v. 245 Va. 429 S.E.2d 27 flight in response police approach that there himself in to a is similar D.). authority, relying on is no submission to an assertion of Hodari Quino, (1992), P.2d the state's 4. In Hawaii v. 74 Haw. 840 358 supreme adopt seizure court held "we decline to the definition of and, instead, greater employed ... D. choose to afford protection maintaining our Mendenhall standard.” citizens too, Connecticut, in Connecti remained the Mendenhall standard with 635, Oquendo, holding cut v. Conn. person purposes is under circumstances seized state constitutional Oregon person leave. in which a would not feel free to reasonable constitution, is person its that a adopted similar standard objectively belief that he when he or has an reasonable seized she Holmes, Oregon Or. P.2d free to v. she not leave. (1991). And, Jersey pursuit in New Jersey is seizure New held that Doss, N.J.Super. (App.1992), law. A.2d 102 under state searches; “fruit of the impermissible suppression Mapp, remedy, tree” is a not an end in itself. poisonous supra; Rodriguez, Commonwealth v. A.2d 532 Pa. (1992). If we are to reduce the number of impermissible searches, we accomplish by giving can best police citizens alike clear to their interactions. guidance govern Chesternut, And, we must supra. to reserve the citizen control over encounter with any authority which is not based on probable cause or reasonable suspicion. Commonwealth Metz, 100, 117-118, (1991), 412 Pa.Super. appeal granted, (1992), J., (Kelly, 531 Pa. 613 A.2d 558 concurring).

If a police officer a citizen without approaches probable Duncan, arrest, Commonwealth v. cause to 514 Pa. (1987), A.2d 1177 or reasonable to detain suspicion and inter Ohio, Hicks, rogate, Terry v. supra; Commonwealth v. Pa. 253 A.2d 276 then that citizen is not seized unless he or she is physically restrained or submits to the D., assertion of authority. Hodari supra. A citizen may demonstrate his or her reasonable belief that objectively he is leave, Mendenhall, free to supra, by leaving, as did both and, hand, Hodari D. the case at Flight Carroll. alone cannot create probable either cause to arrest nor reasonable W., In the Interest to Barry suspicion detain. 423 Pa.Su of Hodari per. the reasoning Under D., citizen, it is only the actions of the the act of discarding view, contraband or exposing it to not the action of police officer in pursuit, which can rise to give probable cause or reasonable suspicion. Carroll had his always legal own pro hands, tections in his own and so as he long carefully exercised right his is did not privacy, throw or away drop officer, within sight contraband of a he would not have probable created the cause his necessary justify arrest. When we follow the reasoning we have encounters, not changed the equation police/citizen we have made only clearer the standard by which we evaluate the permissibility every intrusion. Not encounter citizenry Terry, supra. and the is a seizure. between information. give get a citizen to or may approach Police 553, 100 Mendenhall, 1876. If the S.Ct. at supra, 446 U.S. a police an with chooses to end or avoid encounter citizen (“[t]he Mete, free citizen officer, supra he is free to do so. See the discretion as ours of course retains country in a free such ”) J., run, walk, (Kelly, ... stop or at that moment crawl retreating chooses to concurring). pursue If the officer car, Jeffries, supra, in a fleeing suspect, slowly moving Jones, here, on a with a hand chasing or as chasing, of the officer cannot transform gun, holstered the action or reasonable encounter from one without cause probable suspicion. or reasonable probable to one with cause suspicion can the nature Only change the actions of the citizen encounter, or, The create a new encounter. accurately, more reasonable choice to cause for an arrest or provide probable citizen, for a detention lies with the not with suspicion to the offi Only exposes officer. when a citizen contraband will the two cer’s view the nature of encounter between If cause probable the citizen an officer with change. provides suspicion, or reasonable then seizure is reasonable. There fore, in our right control over the fundamental to be secure in the hands constitutionally belongs, resides where it persons of the citizen. Hodari D. should result in fewer

Following reasoning not suspected rather than more chases of otherwise police flight suspicion citizens. Since alone cannot create reasonable W., cause, only the additional actions probable Barry officer, citizen, i.e., contraband in front of an can dropping a reasonable probable suspicion create the cause or requisite a line than is the brighter seizure. This is clearer nature of of coerced abandonment because the jurisprudence is mea an a officer a citizen police encounter between Hodari D. a approach. sured at the time of Under just a evaluation of how officer no has to make curbside longer Both far he can without coerced abandonment. go creating the citizen can only the officer and citizen now know that suspicion by abandoning cause or reasonable probable create contraband and that the officer no has a longer grey pursuit area of conduct before his becomes a seizure. Under seizure is either restraint or physical the submis sion to the assertion of If a citizen his authority. exercises officer, right to end an encounter with a police he is free to do he, citizen, so and remains free to do so unless gives officer cause or reasonable to arrest probable suspicion him. W., Flight alone does not do that. Barry supra Using concept of coerced abandonment to describe a situation of is a on quasi-seizure slippery slope which neither officer nor the citizen has clear guidance. What is coercion? in the car? Following Chasing Chasing a walk? Chasing at a run? with a hand on a gun? holstered between an gradation possibility retreating officer and a citizen left an officer unclear at what time his or her actions crossed line from approach pursuit. Following of Hodari D. removes reasoning that calculation from the equation which delineates from permissible impermissible po- citizen, lice contacts. An officer may approach may question citizen, citizen, may even detain a but an officer not may search or seize a citizen unless he or she has cause or probable Thus, reasonable an suspicion. Terry, supra. officer will during know at all times an interaction with a citizen whether he or she has the to seize right that citizen. The answer will be no unless always the officer has cause or reason- probable able suspicion.

Contrary to argument Carroll’s and that the dissent in of Hodari D. does holding not shield a wide range Indeed, conduct from constitutional scrutiny. Hodari D. places greater emphasis on the constitutional per- missibility of the encounter to the original by returning citizen the control over his own constitutional A rights. citizen approached a officer who is without by police arguendo proba- with, ble cause or reasonable suspicion may choose converse with and submit to all that comply police officer asks. search which ensues is an Any invasion of impermissible Fourth Amendment expectations privacy any fruit of tree will poisonous suppressed be as such because we have by and submission as Hodari D. authority required a show of If chooses to end the encounter with the the citizen officer, arousing is without reasonable go he or she free And, may cause. he or she suspicion Barry W. probable her, running, walking, in fashion which suits him or go any follows, en crawling. Whether or not the officer with or reasonable probable counter will not be infused cause suspicion unless the citizen chooses to so infuse it. When when the citizen i.e. contra only exposes something private, band, to the view of the officer would the nature of times, encounter At all the citizen has the control change. encounter; over this is all the state and federal constitu Katz, tions demand. All of the supra; Rodriguez, supra choices are those of the citizen and all of lies the control hands of the citizen.

Thus, when we examine the law of Pennsylvania’s source Edmunds, search and seizure as we must under decide whether to follow state or federal precedent regarding occurs, the moment at which we find that history seizure of the state jurisprudence couched terms the federal decisions, Jones, Barnett, Jeffries, supra; supra; supra. Only five states have found greater protections their state by constitutions than that afforded the Fourth Amendment after Hodari D. and twenty-three states have not distin- guished their constitutional from those protections by afforded And, the Fourth Amendment after Hodari D. finally, the public policy preventing considerations of unreasonable chases, searches and limiting police seizures and are better bright served line test in which the citizen controls the nature of police. an encounter with the Nor is there any overriding state command which public policy justify would departure from federal jurisprudence.

Therefore, apply reasoning when we of Hodari D. to the hand, case at we find when approached the officer Carroll there was no seizure because was neither physically Carroll restrained nor did he submit to the officer’s assertion of authority. When the officer pursuing dropped saw discarded he drugs, requisite probable then had the cause to neither the ap-

arrest and search Carroll. Since officer’s seizure, to or was a proach pursuit Carroll cocaine in the are not “fruit of the packets dropped alley poisonous suppressed. tree” and should not have been Order reversed.

WIEAND, HUDOCK, JJ., join. TAMILIA and OPINION, CAVANAUGH, J., files a CONCURRING HUDOCK, JJ., join. which TAMILIA and JOHNSON, J., OPINION, in which files a DISSENTING McEWEN, BECK, JJ., join. DEL SOLE

CAVANAUGH, Judge, concurring.

I following JOIN the and would add the Majority Opinion, comments.

I. I Majority Dissenting believe that both the and the Opinion Opinion fail to address an important aspect present issue. Our Court has declared that can “[w]hile we our own constitution to afford interpret greater defendants protections than the federal constitution does ... there should compelling be a reason to do so.” Gray, Commonwealth v. 476, 484-5, (1985) added); 509 Pa. 503 A.2d (emphasis Sell, 46, 63-4, accord Commonwealth v. 504 Pa. (1983) (Hutchinson, J., Thus, dissenting). while certainly

our may greater Constitution afford than the protections U.S. Constitution, Edmunds, Commonwealth v. 526 Pa. A.2d 887 I would submit that a bears a party heavy burden of persuasion convincing a court that our Common- wealth’s Constitution differs from the Federal Constitution.

We are not interpreting Constitutions from two alien soci- eties: the intellectual climate when the Pennsylvania Constitu- tion was written is similar to that when the substantially United States Constitution was written. The provisions in our Commonwealth’s Constitution are often either identical or very similar to that which in our appears national Constitu- two To without reason that the compelling tíon. rule Consti in Rule Law. public tutions differ erodes confidence the Cf. (Hutchinson, J., Sell, Pa. at supra, 504 (“I nation best dissenting) believe interest this are the law by served common standards of constitutional maintaining jurisdictions.”) for this throughout It is separate precisely its in reason forth considerations why Supreme the set four Edmunds, in a analyzing to a court whether supra, assist more provision Pennsylvania’s expansive in is Constitution Edmunds, its 526 Pa. at counterpart. than federal in the A.2d For reasons stated eloquently at 895. no it is is Majority “compelling there Opinion, apparent in this reason” to our interpret Commonwealth’s Constitution broadly instance the Federal more than Constitution.

II. as Dissenting Opinion “thorough characterizes Peterfield, well-reasoned” the dissent Commonwealth den., 421 Pa. Pa.Super. app. (1992). I part, A.2d 400 would for the most that the agree, is expression viewpoint dissent superb opposing However, I wish to majority that articulated herein. major out in that erred that the dissent case one point where respect: inaccurately the dissent claimed that a consti- than right interpreted to be less former- expansive tutional appellate Pennsylva- an court must await ly, intermediate change nia ratification and must Court’s Constitution assume that our Commonwealth’s automatically As expansive interpretation. affords more Peterfield has into our deliberations of this legal theory dissent’s entered case, profound have a theory this could acceptance Pennsylvania on to review claims under the ability effect our Constitution, I think it discuss pause worthwhile dissent’s theory. Peterfield has this not been legal theory research indicates that

My law. from articulated other court of It derives by any solely Peterfield, (mis)quoted the dissent in wherein dissent The relevant for this proposition. weekly legal newspaper reads as follows: in the dissent passage an our role as proper concern for Echoing majority’s court, change “until a I propose intermediate would Penn- by the is ratified requirements federal constitutional Court, court must a lower sylvania Supreme matter of as a constitutional claim analogous treat an state how no matter interpretation, constitutional independent in the past.” has been followed authority federal closely (Ford- A.2d at 552 at Peterfield, supra, Pa.Super. Ledewitz, Elliott, J., “The State Con- B. dissenting), quoting Law Jour- Pennsylvania Importance,” stitution Assumes New (November 1984) No. 42 nal Vol. Reporter, added). was quote article original newspaper The (emphasis a “... a lower it averred that except identical to the above an state constitution- may analogous court treat interpreta- as a matter of constitutional independent al claim tion____” Ledewitz, of the passage at 10. The thrust supra, thus stands for in the dissent misquoted which is Peterfield appellate an intermediate nearly opposite proposition: consider, state reject, independent and may presumably court there has been a basis for where disposition as a grounds law. change in federal constitutional Thus, legal from a misquote weekly it that a appears as a doctrine of law given credence newspaper reper- dissent. the most severe of panel Only Court Superior error in the future. following result from this cussions could announced, is not static: it is Federal law Constitutional in an ongoing various federal courts changed by refined and dissent is that we process. implication Peterfield federal expansive mark of high-water must adhere to the until the Pennsylvania Supreme interpretation constitutional However, high-water determining otherwise. says Court can all courts or commentators mark is a feat in itself. Not law is or was presently what the federal constitutional agree be in the future. let alone what it should point, at certain point at a certain will be out what the law was Trying figure prac- the resources of both and waste judicially unmanageable titioner judge alike. Constitutional tides come in and they go out. I only believe the relevant is inquiry where the tide is now, not its ebb and flow.

The dissent in assumes that the mark high-water Peterfield normative, of constitutional jurisprudence is such that we should presume that Supreme Court would disfavor more restrained an approach. assumption Such unwarrant- ed. There is no reason to think the Pennsylvania Su- preme Court would not follow federal law in our interpreting in any Gray, See state constitution a particular instance. (1985) 509 Pa. at at 926 (Pennsylvania fails to find that Aguilar-Spinelli persuasive test for probable applies cause under the Pennsylvania Consti- tution rather than the more recent federal test articulated in Gates). Moreover, Illinois v. event, in any there exists no why, articulable reason without guidance from our Su- Court, preme we should voluntarily limit our ability to review (and reject) claims under the Pennsylvania I Constitution.1 would trust in the institutional capacity this intermediate court to correctly interpret a claim under the Pennsylvania conclusion, Constitution. In I feel it is of the impor- utmost tance that we at the nip bud this novel legal theory of dubious origins before it takes on a life of its own.

III. Edmunds, The final consideration that supra, mandates is public policy. I would like to propose an additional reason to public believe policy is best Hodari: by following served the investigatory function of the police severely handicapped by a the fungible definition of “seizure” articulated in United Mendenhall, States v. 544,100 446 U.S. S.Ct. 64 L.Ed.2d notes, As the Majority Opinion the Mendenhall test is as follows: person “[a] has been seized within the if, meaning the Fourth only Amendment view all the presume, given 1. I would carefully that the set forth a Edmunds, analyzing mode of state Constitutional claims in that facilitate, attempted the Court discourage, has not lower courts’ analysis of claims under the Constitution. incident, person the a reasonable surrounding circumstances was not to leave.” As the believed that he free would have notes, subject is reasonable is to differ what Majority Opinion test, mere articulation the ing Under interpretations. akin to of the has been considered “stop” a officer word police Williams, (No. In the Barry a Interest seizure. See 1992) J., Phila.1990, (Cavanaugh, dissenting).* filed April be. This cannot is a Dissenting Opinion flight

The posits tenor no I see presence. disagree, reaction police reasonable police discouraged reason the should be why constitutional may or be following person may currently from a who have plain fact is that those who activity. in criminal engaging something present flee the often have to hide. case, co- appellee packets crack fleeing possessed follow, cases companion persons caine. In the three which either attempting drugs were to hide fleeing Al- person. secreted on their unlawfully-carried weapons obviously today, case is not before us one could though the are from imagine prevented a scenario where their who later turns out presence someone following fleeing experience felon. I shows that when to be violent believe it is police, frequently flees at the person sight “The flee activity. the detection of criminal wicked prevent Hodari, 28:1, Proverbs as pursueth.” quoted when no man - 1, 113 at n. at 1549 n. supra, 499 U.S. S.Ct. n. at 695-6 1. L.Ed.2d danger Opinion

I this to the compare Dissenting would of seizure. The presented by claims is definition Stevens’ dissent Hodari Dissenting Opinion cites Justice encourages that the Hodari definition of seizure worry an tech- evidence-gathering a “slow chase” as police to use This concern is rather 417. nique. Dissenting Opinion See a very as it be difficult for hypothetical, certainly would event, “chase” be made this “slowly.” any potential threat comparison concern to the real pales very mentioned. * Opinion heard en banc. See In withdrawn. Case later and decided Williams, Pa.Super. Barry Interest concealing above that who flee the are criminal persons police activity. just entities that police

Our are more than departments take an keep They statistics of victimization after the fact. investigating role, constitution, active consistent with the possible very their activity. Fleeing criminal not nor should it be. While sight constitutionally protected, is by any a civilized should not tolerate misconduct society means, society wary a civilized also should not be so misconduct it law en- encourages flight legitimate from authorities, a contradicts type forcement lawlessness that fundamental notions of what is a society. civilized HUDOCK, JJ.,

TAMILIA join.

JOHNSON, Judge, dissenting. case,

In the present we are a requested single determine issue of law: whether this will follow the United State’s v. Hodari Supreme Court’s decision in 499 U.S. California -, 111 S.Ct. 113 L.Ed.2d 690 in deciding whether a who person abandons contraband while being chased by police was “seized” and thus entitled to invoke the protection Article of the Pennsylvania Consti- tution to suppress the contraband. Because I understand the Hodari D. holding contrary to be to settled precedent seizures of regarding persons and the doctrine of abandonment, coerced I must dissent.

Our court supreme defined the standard under which we are to review an from the appeal grant of motion to suppress DeWitt, in Commonwealth v. 299, 301, 530 Pa. (1992) (citations omitted):

We begin by noting suppress that where a motion to has filed, been the burden is on the Commonwealth establish challenged evidence is In reviewing admissible. court, ruling suppression our task is to determine whether findings by factual are the record. supported so, Where, here, If we are bound as findings. those it the Commonwealth who is the decision of the appealing court, the evidence only we must consider

suppression for so much of the evidence and defendant’s witnesses a the record as read in the context of as prosecution whole remains uncontradicted. case, of the above light viewed in facts of this when 22, 1989, uniformed

standard, reveal that on October on Reinecker were patrol and John Joseph Milligan officers and Richard Carroll observed they a marked car when corner of Olive Street standing individual on the another Milligan, stated to Reinecker Officer Officer Philadelphia. reason, the individual investigate to that he wanted without and Both exited the vehicle with Carroll. officers standing Reinecker was speak- men. While Officer approached two Milligan Car- approached Officer ing companion, to Carroll’s him to remove roll hand his and started to tell gun with his on his the officer could finish his hands from his Before pockets. statement, alley. fled down an turned and Officer Carroll Carroll, fell. slipped During then and Milligan who pursued fall, packages containing his two brown-tinted heat-sealed pocket. Upon reach- white from Carroll’s dropped substance Carroll, his and instructed ing Milligan gun Officer drew down with his hands ground, Carroll to remain face on handcuffed, and his back. then arrested behind Carroll was revealed 45 addition- pocket searched. The search Carroll’s al a white substance. packets containing brown-tinted arrest, his a motion to litigated suppress Carroll

Following that by police, claiming packets the material seized and illegal stop were as the result of an seizure dropped court, a full following hearing, The trial Milligan. Officer finding Motion Carroll’s granted Suppress, Carroll’s from his of the packets product loss of the pockets had on who neither part police, coercive acts cause Carroll. The probable stop reasonable nor suspicion Court, which certified this Commonwealth this appealed en banc review. case contends, holds, Majority

The Commonwealth we follow recent decision the United States must D., Hodari, in the Supreme Court California present case to conclude that there was no seizure of Carroll under either the Fourth Amendment of the United States Constitution under Article of the Pennsylvania Constitution, therefore, no sup- constitutional principle ports suppression. the police, without probable cause or reasonable suspicion, approached group youths who immediately D., fled. One of the youths was Hodari who upon officers, close pursuit by one of the police discarded what to be appeared a rock but was later discovered to be crack cocaine. Hodari D. was then arrested. Hodari D. moved to suppress the crack as the product of his illegal by seizure police. The trial court denied the but the petition California reversed, of Court Appeals holding that the police seizure of Hodari D. was unreasonable and that the requiring crack be suppressed. The California Supreme Court denied appellate review. The certiorari, United States granted Court reversed the California Court of Appeals and held that Hodari D. was not seized within the meaning the Fourth Amend- therefore, ment and the cocaine was not a product of an illegal subject seizure to suppression. D.,

In Hodari Court, Justice Scalia speaking for the con- ceded that the police officers had neither probable cause nor reasonable suspicion to stop concluded, Hodari D. The Court however, relying on archaic common-law theories of arrest and seizure, the dictionary definition of that where an individual does not yield to a show of police authority, person is not seized and therefore Fourth Amendment guarantees are sim- ply not implicated in such an interaction. The Court D., rejected specifically the long-held legal definition that, officer, of seizure when “[o]nly by means of physical force or show of has authority restrained the of a liberty citizen may we conclude that a ‘seizure’ has occurred.” Terry Ohio, 1, 20, 1868, 1879, 392 U.S. 889, S.Ct. 20 L.Ed.2d The Court also redefined the test for seizure as Mendenhall, articulated United 544, 553, States v. 446 U.S. 1870, (1980) S.Ct. 64 L.Ed.2d which stated: “that when, a person ‘seized’ only by means of force physical or show of authority, his freedom of movement is restrained.” apply that the courts to

The Mendenhall Court stated test for “in had occurred was whether determine whether a seizure incident, a surrounding of all of the circumstances view free believed he was not reasonable would have person leave.” Id. at at 64 L.Ed.2d at 509. The 100 S.Ct. in Mendenhall of what would gave examples then by including, “the authority a show of constitute officers, several display threatening presence officer, touching person physical an some weapon citizen, indicating of voice language or the tone use com- officer’s would be request with the compliance Id. pelled.” if

In what the Hodari D. dissent interpreted “nothing as not (Hodari at-, 111 S.Ct. creative U.S. lawmaking”, Men 707), interpreted 113 L.Ed.2d at Justice Scalia at “necessary, denhall show of force as a require Hodari D. at for a not sufficient condition” seizure. but -, at In order for the 113 L.Ed.2d 698. S.Ct. under the new Hodari D. standard, to be seizure effectuated show of must now be with submission police coupled force at-, 1552, 113 Hodari D. at police authority. to S.Ct. at 699. does the to leave” standard longer L.Ed.2d No “free Now, a seizure has occurred. determining whether apply occurred, by a seizure has absent restraint physical whether to the depends the individual’s reaction show police, upon Hodari D. at-, 111 S.Ct. at authority by the police. J.). Stevens, 1559, (dissenting 113 L.Ed.2d opinion by at 707 despite by of force The Court reasoned that since a show he police authority, Hodari D. did not submit to was not police, standard did not occur until seized. Seizure under the new Therefore, Hodari police Hodari D. was tackled officers. cocaine, such, crack as voluntarily D. had abandoned the by police properly the crack was recovered and was lawfully admissible as evidence. Hodari D. are similar facts of

The facts to the Here, case. officer Carroll with present police approached his gun, using his hand on an authoritative tone voice. Carroll, however, of the authority did not submit to but chose to flee. Under Hodari whether the officer had to or suspicion probable stop reasonable cause Carroll leave person whether reasonable would have felt not free to the scene must be whether ignored. determining Carroll seized, only response we must now look to the individual’s Where, here, to the as authority. person show occurred, decides to flee and is no seizure has pursued, of the show of force. It is when the regardless only Carroll, police actually physically restrained with his face to find, will Hodari ground, gunpoint, permit D. a court to Amendment, under the Fourth was seized. Carroll concede, I will as do all to we are parties litigation, this bound to Hodari D. in cases apply arising solely under federal constitution. Harper, Pa.Super. Commonwealth 608, However, 611 A.2d 1211 I with the disagree Commonwealth’s contention that we are bound Ho- apply dari D. to claims arising Article absent a statement effect by supreme this our court. Edmunds,

In Commonwealth v. Pa. supreme our court articulated the process through which the courts should consider claims under the arising Constitution, Pennsylvania especially addressing concerns There, arising under Article Section 8. the court stated that when interpreting provisions Consti- tution, courts of this Commonwealth are not bound by the decisions United States Court which interpret provisions similar of the federal constitution. Id. at A.2d at 894. While the federal constitution establishes certain states, minimum applicable levels to the each state has the broader power implement standards under the provisions of its state court, constitution. Id. at 586 A.2d 894. The there, Brennan, cited to State Constitutions and the Protec- tion Rights, Individual 90 Harv.L.Rev. 489 stating: Although we may weight accord to federal decisions where reasoned, they are found to be and logical paying well due regard precedent and policies underlying specific guarantees, reject constitutional we are free to the conclu- sions of the United States Court so as we long by the minimal established guarantees

remain faithful to Constitution. United States at 895.

Id. at be briefed analyzed that four factors and requires Edmunds provision by parties any implicates case which citing A.2d at 895 Pennsylvania constitution. Id. 103 S.Ct. 77 L.Ed.2d Michigan Long, U.S. Those factors are: Pennsylvania 1. of the constitutional provisions; text case provision, including Pennsylvania 2. of the history law; states; from and

3. related case-law other considerations, and local including 4. issues state policy concern, juris- modern applicability Pennsylvania and with prudence.

Id. fully com-

Since both Carroll and Commonwealth have requirement with and under Ed- plied briefing analysis this munds, an has the undertake responsibility this Court of the presented under independent analysis question I now with that Pennsylvania proceed Constitution. will required analysis.

First, of Article 8 of Pennsylvania the text provides: Constitution

Security from Searches and Seizures secure in people persons,

Section 8. The shall be their houses, possessions from unreasonable searches papers seizures, to seize any place and no warrant to search or them as any person things describing shall issue without cause, be, by nearly probable supported as nor without may oath or subscribed to the affiant. affirmation Constitution, simi- provisions while Amendment, to the the Fourth have provisions lar federal our court to af- independently by supreme been interpreted those greater ford criminal defendants than protection See, e.g., the federal Common- provided constitution.

27 Melilli, Edmunds, v. Pa. 521 supra; v. Commonwealth wealth Sell, 46, v. (1989); Pa. 405, 504 Commonwealth 555 A.2d 1254 221, Bussey, 486 Pa. v. (1983); Commonwealth Second, pro- of Constitution history the the law of the development the insight independent vides into Article in this Commonwealth. regarding search seizure of Amendment 1, the the Fourth drafting predated Section Sell, 63, v. at more than a decade. Commonwealth Pa. the significance court indicated supreme 470 A.2d at 466. Our history the of throughout our provision this of constitution of Sell in when it stated: Commonwealth this 1, 8, highly we find it In Article Section construing in that employed provision that the significant language the of from words any does not in vary significant respect in our The test of Article its first constitution. counterpart 1, no basis for the conclusion provides Section 8 thus today it differs from the embodies philosophy purpose those the prompted guarantee which first Commonwealth Rath- government unreasonable intrusion. protection from 1, er, in the the now Article language employed survival of 8 through years profound change Section over 200 for other concern paramount areas demonstrates adopted part organic as a law 1776 privacy first our enjoy continues to mandate this Com- people monwealth. 65,

Commonwealth Sell 457. A.2d at Edmunds, court clarified that while supreme further underlying is the safeguarding personal privacy purpose rule exclusionary Pennsylva- of the afforded protection purpose nia citizens Article Section under Fourth rule afforded protection exclusionary There, that: Amendment different. the court indicated very indicates that the of Article thus history in this exclusionary rule underlying the Common- purpose purpose underlying wealth is distinct from quite Amendment, as rule under the 4th articulated exclusionary Leon States U.S. S.Ct. [United v.] [468 (1984) L.Ed.2d 677 ].

The United in Leon made clear Stated that, view, in purpose exclusionary its the sole for the rule police majority to deter misconduct. The Leon also Constitution, that, made clear under the Federal the exclu- rule as “a de- sionary operated judicially remedy created signed safeguard rights generally Fourth Amendment effect, rather through personal its deterrent than a constitu- right party aggrieved.” tional Edmunds, 394-395, (citations 526 Pa. at 586 A.2d at 897 omitted) original). in (emphasis mind, in

With these historical differences I now turn to the in law of seizure and coerced abandonment as it has evolved this Commonwealth. Hicks, 153,

In Commonwealth v. 434 Pa. A.2d 276 supreme adopted our court first the United States Ohio, Terry Court’s decision U.S. S.Ct. (1968). There, 20 L.Ed.2d 889 the court specifically standard, the reasonable suspicion under which articulated police may seize an individual without probable cause. Hicks, that, the court stated for such a precautionary seizure legitimate, and search to be there must first exist on the part of the a reasonable belief that criminal police activity is afoot and that the seized is armed and person dangerous. Id. 434 158-159, Pa. at 253 A.2d at 279-280. This test for whether a “Terry stop” legitimate remains the standard in this Com today specifically adopted monwealth and has been Article Constitution Com (1992). Rodriguez, monwealth v. 532 Pa. Our court addressed the issue of coerced abandon- supreme ment in Jeffries, Commonwealth v. Pa. A.2d 914 case, by The facts of that as stated court Jeffries are: 6,1970,

On the afternoon of November four officers in an unmarked automobile observed walking Jeffries testified along public Pittsburgh. street One officer officers, his pace.’ he ‘quickened when Jeffries saw and so, left the vehicle the officer him do Upon seeing Jeffries, run. While began who then pursue started to cigarette chase, throw observed Jeffries giving the officer the street. along parked automobile package under an directed thereafter, officer overtook Jeffries Shortly other moment a wall. At that him to stand against by told were they on the scene officers arrived Jeffries, him minute.” officer, to “hold one who apprehended from un- cigarette package recovered the The officer then vehicle, to contain and it was found derneath the parked deter- later of a substance packages several foil-wrapped be mined to heroin. 322, 311 A.2d at 916.

Jeffries the contraband his abandonment of contended that Jeffries Our illegal police. of his seizure was the direct result in itself does that and of holding flight court supreme agreed, also held for arrest. The court probable not cause constitute suspicion did not officers reasonable flight give that Jeffries’ “Thus, it is Terry, supra, stating: a seizure under justify and no to ‘arrest’ or ‘seize’ Jeffries right clear the had police chasing subsequently in him and police the action of the right.” his Fourth Amendment him was a violation of arresting 325-326, at 311 A.2d at 917. Jeffries, 454 Pa. Jones, 373, 835, 364, v. 474 Pa. Commonwealth (1977), the standard which adopted our court supreme

840 in what amount of apply determining courts now Pennsylvania for The court forth the test put force constitutes a “seizure.” “a reasonable individual was seized as whether whether an crime, was thought would have he any innocent of [person], shoes.” he been in the defendant’s restrained had being 373, A.2d at 840. Jones 378 addressed again of coerced abandonment

The issue Barnett, 211, v. 484 Pa. court in Commonwealth our supreme (1979). There, in an un- patrol officers on 398 A.2d 1019 down the street walking observed Barnett police marked car When Barnett noticed pockets. with his hands his officers, car. The officers he ducked behind a parked police car, officers Barnett ran. The whereupon stopped then Barnett, during ammunition pistol who discarded a chased arrest- subsequently apprehended, Barnett was pursuit. ed, and other various firearms offenses charged with as and the bullets gun trial suppressed crimes. The court upheld supreme seizure. court of an unlawful Our products stating: order suppression circumstances, cor- court was suppression Under these merely than the officers did more rect finding here The conduct approach appellee questioning. the main reason factor which was amounted to a coercive weapon. abandoned the appellee A.2d 1019. Barnett at applied the tests consistently courts have Jones, Hicks, when deter and Barnett Jeffries, articulated constitutes a sei authority whether a show of mining zure, was made with cause or probable whether the seizure contraband abandoned while reasonable and whether suspicion an individual was the pursuing were approaching See, e.g., illegal of an seizure. Commonwealth product denied, Lovette, 498 Pa. 450 A.2d 975 cert. U.S. 1178,103 (1983); 74 L.Ed.2d 1025 Commonwealth v. S.Ct. Hall, (1977); 380 A.2d 1238 Commonwealth v. Pa. Brown, (1989); A.2d 177 Common Pa.Super. Bulling, Pa.Super. wealth v. has addressed Hodari D. in several cases in

This Court during individuals had abandoned contraband an inter- which Harper, with the In Commonwealth v. 416 police. action (1992), 1211 a of this was Pa.Super. panel 611 A.2d person with the issue of whether a who discarded presented found, in while clothing, being items of which contraband was “seized” for of the Fourth by police purposes pursued In we were constrained to follow the Harper, Amendment. Amendment purposes dictates of Hodari D. for Fourth concluded that no seizure had occurred the chase during case, however, of the defendant. In that no claims were made Constitution. There, described for our Court writing Beck Judge from departure Hodari D. to be a marked reasoning in the federal courts by used generally recognized principles Amendment a “seizure” under the Fourth determine whether 613, 611 at at A.2d Harper, Pa.Super. has occurred. case, examined the Hodari In specifically 1215-1216. that we determining whether of the standard for rejection D. Court’s occurred, by set forth the United States which was seizure has Mendenhall, Michigan supra., in Supreme Court Chesternut, 100 L.Ed.2d 108 S.Ct. 486 U.S. our by supreme adopted This is the same standard by made Jones, change radical supra. Harper, court was illustrat jurisprudence Amendment Hodari D. in Fourth LaFave, in 3 Search and to a comment W. by ed citation (2d 9.2, which states: Supp.1992), § p. Seizure 89-90 ed. is to have ought recognized in Hodari D. the Court What Mendenhall-Royer concept that the “not free to leave” flee choice particular suspect’s has to do with nothing probability his submit or with assessment rather than lament, instead, the dissenters fight. But as of successful is timing of the seizure “concludes that majority reaction, by offi rather than by the citizen’s governed well, Hodari D. is inconsis In this as cer’s conduct.” sense jurisprudence, Amendment tent with established Fourth in the cases relied emphasized very including principles Chesternut, majority----in Michigan v. upon stop whether a determining Terry Court reiterated occurred, is to utilize a standard necessary has it the conduct “allows to determine advance whether Such will the Fourth Amendment.” contemplated implicate would not in Hodari for what certainly the case illegal Terry and thus seizure be a groundless otherwise Amendment totally outside the Fourth becomes conduct nonsubmission. merely suspect’s because of at 1216. Harper, Pa.Super. 313, 609 A.2d Peterfield, Pa.Super.

In Commonwealth v. (1992), denied, Pa. appeal D. to hold that cited Hodari joinder, without Judge Kelly, Peterfield, arrestee, since did not submit to the police force, show of he could not be considered “seized” for pur- case, poses of the Fourth In Amendment. Id. Peterfield that, 8, made a claim under Article he had been contraband, illegally seized when he abandoned the and that all fruits of that seizure should be suppressed. Judge Kelly, however, refused to consider Peterfield’s claim under because he had not with complied Constitution Edmunds, briefing requirements put forth would enable a court to such a claim. Id. separately analyze 609 A.2d at 543-544. In Pa.Super. Peterfield, second judge concurred in the result and the third only, judge dissented. W,

In In the Barry Pa.Super. Interest 621 A.2d (1993) (en banc), this Court discussed Hodari again D. and its from established divergence Pennsylvania precedent but case, found Hodari D. to be inapplicable to that as the issue before the court was not whether a seizure had occurred but flight whether alone could justify reasonable suspicion by detain forcibly the appellant.

While Hodari D. has been discussed other decisions Court, this this is the first time the issue of whether Hodari D. should be in the applied context of a state constitutional claim has been placed squarely before us. Under the third Edmunds, requirement a court interpreting a provision of the state constitution should inform itself of the decisions in sister regarding states the adoption newly of a promulgated rule under the United States Constitution with regard to similar contained in provisions the state constitutions of those jurisdictions. I will now undertake that inquiry.

There has not been uniform acceptance rejection of Hodari D. in other jurisdictions which have faced the issue of whether Hodari D. should become the standard under constitutions of those states. Doss, State v. N.J.Super. cert.

denied, 130 N.J. the New Jersey Superior directly not faced with the issue of Hodari D. should be the constitution applied whether However, holding that the the court stated clearly that state. the was by police of a Hodari pursuit suspect in “that not permissible a was a ‘search’ nor ‘seizure’” neither a law, may chase a only as Jersey police under New conclusion suspi- “at an ‘articulable have formed least suspect they after in the engaged was or had been suspect] cion’ that [the Id 254 at 127- N.J.Super. of criminal offense.” commission 128, 104-105. A.2d at Holmes, A.D.2d 27 v. N.Y.S.2d People

In Division (1992), con- Supreme Appellate New York the of Hodari holding the adopt state should sidered whether that York D. the New Consti- to a claim under State as applicable of of Holmes are similar to the facts the The tution. facts There, recognized appellant the police officers present case. on drug had been arrested as an individual who previously officers, suspicion The without reasonable police charges. process committing was appellant that the armed the crime, appel- chase when the appellant gave the and called his Holmes discarded a During flight, lant turned and fled. narcotics, the containing by which was recovered bag to suppress after Holmes moved the apprehension. Holmes’ illegal narcotics as the fruit an seizure. Holmes, D. overruled Hodari prior court that held

New York cases the Fourth Amendment. How- interpreting Hodari D. under Article ever, court refused to follow Constitution, pro- New which Section York State against unreasonable searches seizures protections vides of the similar to those for Article provided There, Constitution. the court held provides greater protection New for York Constitution of its seizures than its against citizens unreasonable privacy Id. 585 N.Y.S.2d at 719-720, federal 181 A.D.2d counterpart. at 28-32. Oquendo, State A.2d

Similarly, Conn. Supreme Court of Connecticut also considered the D. a claim made implications upon under the section protecting against Constitution unreason- Connecticut case, able searches and seizures. In that a police officer stopped Oquendo and his because the companion officer sus- pected that they could be involved with possibly neighborhood burglaries since were they wearing coats on a warm night. The officer Oquendo summoned that he requested produce bag the duffle he was At carrying. point, Oquendo fled and the officer pursued. During the cocaine, pursuit, Oquendo discarded the duffle bag, containing police. which was recovered Oquendo subsequent- arrested, ly and moved for of the contents of suppression duffle as bag, products illegal of an seizure. held that the provisions Court Connecticut of the constitution provided greater protection of that state of its privacy citizens than the federal constitution and refused to apply Hodari D. to the state constitutional claim. Conn, Oquendo, 223 at 613 A.2d at 1310. The court rejected Hodari D. as too restrictive a providing definition of seizure that was inconsistent with the decisions of previous court, that despite that fact that protections the under the state constitution had always followed the dictated path by the Fourth jurisprudence Amendment of the United States Su- preme Court. Id. Supreme Court of Hawaii has also had opportunity the

to address the issue of whether Hodari D. should be followed when a claim arises implicating that state’s constitutional protection against unreasonable searches and seizures. State — Quino, v. (1992), denied, Haw. 840 P.2d 358 cert. U.S.-, 1849,123 (1993). There, 113 S.Ct. L.Ed.2d 472 court rejected Hodari D. as inconsistent with the previous holdings of that court seizures. regarding The court stated that Hawaii has chosen to afford greater to protection its citizens by rejecting the United States re Court’s quirement that physical force or submission to an assertion of authority determines whether a person has been seized. Id. 840 P.2d at 359. In rejecting the public policy implications Hodari the court stated:

We cannot allow to randomly “encounter” individ- uals without any objective basis for them of suspecting in a coercive environment place and then them misconduct their justify suspicion reasonable develop in order is on the technique based investigative This detention. comes person, innocent who that an otherwise proposition reason, no not innocent scrutiny good that she is. or he or he she convinces unless Id. at 365. Holmes, 813 P.2d 28 311 Or.

In State con- question considered the of what Supreme Court Oregon and the Oregon Constitution a seizure under both the stitutes holding accepted While the court federal constitution. it analysis, D. for of Fourth Amendment purposes Hodari ques- seizure of state constitutional purposes defined for the put the definition forth in differently tions much than Oregon constitutes a under the defining D. what “seizure” Constitution, stated: court of a occurs under Article

We hold a “seizure” person (a) if Constitution a law enforce- Oregon section restricts, inter- intentionally significantly ment officer and with, or otherwise an individual of deprives feres movement; (b) whenev- individual’s or freedom of liberty (a) above, has er an individual believes that occurred belief is in the objectively such reasonable circumstances. 813 P.2d at 34. This definition is similar Id. Or. Mendenhall, defini- articulated in standard has until to the time been present tion of seizure which under followed Constitution. York, of New reasoning Jersey,

I find the New Connect- Hawaii, icut, and persua- and courts to be both sound Oregon of have chosen to remain sive. In each states the courts these In of analysis. “free to leave” each with Mendenhall states, under constitu- Pennsylvania, analysis these as in state relating previously to search seizure had provisions tional with the United analysis provided been co-extensive issues Fourth Amendment deciding States Court However due to seizure and coerced abandonment. relating D. repre- that Hodari decision to the dramatic departure sents well-established as it has meaning from the of seizure state courts would not such an developed, these countenance upon the of their infringement privacy citizens. jurisdic- “other The Commonwealth brief informs us that that suspect tions that have considered the Hodari D. rule ‘seized,’ who to flee accepted decides has not been have followed it.” Brief for not until its reply 17. It is Appellant brief other that the Commonwealth admits that some states citation, rejected have Hodari without contending, majority of to consider this have found the “[t]he states issue Reply Hodari Brief reasoning persuasive.” of D. to be for 14. Appellant at

The of Majority among cites to the our sister split authority states this issue as three of regarding twenty accepting states reasoning of Hodari and five such rejecting D. states However, of reasoning. thorough after a review the cases cited, my many research reveals that of the cited state court apply only decisions rationale of Hodari D. the context of claims made under the Fourth Amendment to the United Constitution, States rather than claims made un- specifically der similar state of the constitution. As it is provisions uncontested that the Hodari be holding applied D. must ’ all arising solely claims under Fourth Amendment to the Constitution, United I will those States address decisions only from other jurisdictions which have held that Hodari D. should become the standard determining whether a seizure has analysis. occurred a state constitutional People Arangure, 230 Cal.App.3d Cal.Rptr. the California Appeals adopted D. for the of a analysis state constitutional claim regarding seizure court, and coerced abandonment of contraband. however, its prefaced discussion state constitutional analysis by stating that courts in California are required interpret state constitutional claims as controlled by precedent Federal due to adoption 8 in Proposition enacted as Article 1, California Constitution. Otherwise known Clause, as the Truth Evidence abrogates section suppression of evidence seized in violation California

37 Hence, the but not the federal constitution. Constitution in D. for the court Hodañ required accept California of a state claim. purposes constitutional split The on this issue apparently Louisiana Courts have D. for with the Hodari Appeals accepting Louisiana Court of Gainer, in v. purposes the of state State analysis constitutional Cir.1991) rejecting 591 4th and then So.2d 1328 (La.Ct.App. under the state analysis the Hodari D. for a similar claim Tucker, 2d (La.Ct.App. in v. 604 So.2d 600 constitution State Cir.1992), (La.1992). 212 appeal granted, So.2d Shahid,

In the (Mo.Ct.App.1991), State v. 813 S.W.2d of Appeals purposes Missouri of followed Hodari D. Court in no state consti engaged separate its state but constitution thus little to this court. analysis, providing guidance tutional v. Rawlings, Court Idaho State Supreme (1992), D. with approval Idaho P.2d 520 cited Hodari did the Hodari D. rationale specifically adopt but not Constitution, issue not been squarely as that had Idaho placed before court.

In Maryland, Md.App. Henderson addressed a Maryland Special Appeals, Court of sub judice. to the claim in the case substantially claim similar There, Hodari D. for the adopted court reasoning Constitution, Maryland rejecting appel purposes of lant’s claim that 26 of the Declaration of Maryland Article provided greater than does Fourth Rights protection Id. A.2d to the Constitution. Amendment United States 488. E.D.J., (Minn.App.1992), 492 N.W.2d 829 Welfare 1993), the Minnesota appeal granted, Court (January court, adopted also Appeals, appellate an intermediate what constitutes a reasoning interpreting D. There, of that the court seizure under the constitution state. held that be reasons for inter may compelling “[t]here while 10, of the Minnesota Constitution Article preting has inter than the United States differently D.,” appellant in Hodari preted the Fourth Amendment basis or court historical E.D.J. the court with no presented from the departure permit which would the court precedent also noted that The court federal standard. Id. at 830-831. reject- accepted nor Supreme the Minnesota Court has neither whether there determining ed Hodari for the of purpose Minnesota Constitution. purposes has been a seizure for of the and Texas have in Ohio Similarly, Appeals Courts D. under the the standard articulated adopted similar interpreting provi- Fourth Amendment for purposes sions under the constitutions of those states. See Ohio (No. Barnwell, App., April 64297 Ohio filed WL 135796 Rose, 1993); (Tex.App.1992). Texas v. S.W.2d rejection There be no uniform or appears acceptance to However, Hodari D. our sister states. several other among jurisdictions rejected despite have Hodari D. the fact that their state had previously constitutional definitions of seizure been princi- coextensive with federal law. This reinforces the ple Pennsylvania need not Hodari D. adopt merely because our supreme previously interpreted court has seizure, Constitution, term of the purposes Pennsylvania a manner consistent with the decisions of the United States contrary, Court. To the this has the obli- gation, when with presented pursuant a claim to the Pennsyl- Constitution, vania evaluate whether independently protections provided to citizens of this Commonwealth Edmunds, should exceed those dictated under federal law. supra. Edmunds,

The requirement fourth under requires courts discuss the policy considerations involved in accepting precedent federal in the context of a claim made under the First, I Constitution. view this Court’s adoption of Hodari D. as a drastic from the departure standard for what determines whether a “seizure” has occurred under the See, Hicks, established law of this e.g., Commonwealth. su- Jones, pra, Jeffries, supra. See also Harper, supra. Second, Hodari D. represents a standard under which police officers are unable to their predict whether actions will of Article protection in a seizure or will be outside the result or since whether entirely or Fourth Amendment not depends upon occurs Hodari D. not a seizure of the individual the reactions upon actions but Stevens, of the describing the virtues Justice involved. now dangers approach promul- and the Mendenhall test LaFave, 3 W. cited to majority, Hodari D. gated by the (2d ed. Supp.1991): § 9.2 at 61 Search Seizure words, nothing in other has concept, “free to leave” flee rather than suspect’s with choice to particular do of success- probability his submit with assessment otherwise, encouraged be it would police Were flight. ful slow chase as sufficiently but threatening a very utilize lack even they whenever evidence-gathering technique stop. a Terry needed for suspicion reasonable 1559, 113 D., at-, at 111 at L.Ed.2d S.Ct. Hodari 499 U.S. D., J., second (Stevens, Hodari this dissenting). Under 707 LaFave, has been put hypothetically by scenario forth law enforcement longer under law. No will sanctioned federal of their actions required impact be to assess the authorities reason prior pursuing despite any to individuals lack may engaged armed or suspicion able that those individual be in activity. criminal Pennsylvania, prior majority’s adoption

Finally, to rule, comply had no obligation the Hodari D. the pedestrian merely police. viewed any upon being with detention 1328, Metz, 100, 119, 412 602 A.2d Commonwealth v. Pa.Super. (1992) (1992), denied, 652, 531 Pa. A.2d 558 appeal 613 J., such as country citizen in a (Kelly, concurring). free walk, run, discretion to crawl ours of course retains the circumstances, under at that moment or such stop any other nor can draw and neither the the courts accordingly, discre any such any adverse inferences from the exercise of 125, Martinez, Id.; Pa.Super. v. tion. Commonwealth 653, 513, denied, 530 Pa. appeal (1992). However, of the adoption with this A.2d Court’s standard, enjoy protec D. can and rights Hodari a citizen only Section tions of Fourth Amendment and Article directive, any police with immediately complies if that citizen officer is without acting of whether regardless has predicted At least one commentator suspicion. reasonable D., verge is on the Supreme that in Hodari Court from encounters. walking away citizens from preventing Hodari, Note, D.: The Demise the Reasonable California 12 N.Ill.L.Rev. Analysis, Test in Fourth Amendment Person 463, 494 D. as the adopting unwilling participate

I am the fears of I share Pennsylvania law under Constitution. that, logical carried to its “[i]f Marshall Justices Stevens conclusion, that will it will unlawful of force encourage displays surrendering innocent citizens into whatev frighten countless at rights they may er still have.” Hodari 499 U.S. privacy (Stevens, J., -, 113 L.Ed.2d at 710 S.Ct. dissenting). factors, as a

After a full review of the four Edmunds as well Pennsylvania full review of Hodari D. and previous only I can conclude precedents, United Stated Hodari D. as on the adopt binding rights Article of our citizens existing constitution be to overrule all on precedent would therefore, I, join law will not with Pennsylvania. of seizure in its decision in this case. Majority case, Returning present apply to the I would the traditional Jones, and to the standard articulated Jeffries actions of the officer in order to determine whether police Article Carroll was “seized” for purposes I that a reason- Pennsylvania Constitution. would conclude free to leave able would have believed that he was not person officer, when, he after his from a attempted departure exercises his right When an individual who pursued. walk from a show of is then away authority pursued, that he or she was not free person reasonable would conclude Jeffries, supra. to leave. See fell and dropped If Carroll were “seized” at the time he analysis, traditional we drugs from his under our pocket, with acting officer was inquire then whether would case, present In the suspicion probable or cause. reasonable the officer no evidence has offered Commonwealth his had a gun with his hand on who Carroll approached be armed might belief that reasonable and articulable Carroll detention, activity might Any police that criminal be afoot. belief, the police an renders the absence of such articulable which of all evidence requires suppression actions illegal Mar- Jeffries, supra.; was the of such a “seizure.” product tinez, supra. contraband

As I conclude that the “abandonment” of the conduct, I would the product illegal police Carroll was therefore, I, re- affirm the order of the court. suppression spectfully dissent.

McEWEN, BECK, join. DEL SOLE JJ.

In the Interest of Carlos CRUZ. Pennsylvania. Appeal of COMMONWEALTH of Cruz, Appellee. Carlos Pennsylvania. Superior Court of Argued April 1993. July

Filed 1993. Burns, Jr., Hugh Atty., Philadelphia, J. Asst. Dist. for the appellant. Com.

Case Details

Case Name: Commonwealth v. Carroll

Court Name: Superior Court of Pennsylvania

Date Published: Jul 2, 1993

Citation: 628 A.2d 398

Docket Number: 00748

Court Abbreviation: Pa. Super. Ct.