Commonwealth v. Strickler

context, or upon depend entirely interrogation should law enforcement initially employed pretext, potentially setting. interrogation into the the defendant bring officers formulated, underlying view, policies as rule In my matter of subject if the only effectuated consistently it can be controlling consider- is made interrogation the custodial Persiano, 555 Pa. v. Commonwealth ation, suggested as was (1999). 725 A.2d I of the now favor abandonment present holding, Given federal construct and reversion Davenport/Duncan of the circum- totality consideration entailing model Fulminante, See, e.g., Arizona case. every stances (1991). 279, 285-86, 1246, 1252, 113 L.Ed.2d of a continuation vastly superior to I the federal model find rule at to function no readily of avoidance as capable rule so on such terms all; indeed, I its maintenance believe that for the diminishing respect with it the potential carries their lawful subject authority eyes those courts’ mandates. opinion. joins concurring this

Justice CAPPY 757 A.2d 884 Pennsylvania, Appellee, v. COMMONWEALTH STRICKLER, Eugene Appellant. Brett Pennsylvania. Supreme Court of Argued Nov. 24, 2000. Aug.

Decided Waller, Arla M. Office, Public Defender’s Eugene Brett Strickler. Office, Keating,

Jaime Dist. Atty.’s for Com. FLAHERTY, C.J., ZAPPALA, Before CAPPY, CASTILLE, NIGRO, SAYLOR, NEWMAN and JJ.

OPINION SAYLOR, Justice. whether, presented

The issue pursuant Fourth Constitution, Amendment to the United States evidence seized from during vehicle the course of a consent search was properly suppressed. a.m., a 26, 1995, 12:40 uniformed at approximately

On May Department was Township Allen Police Upper vehicle, traveling on Fisher in a marked patrol on routine side area, a car parked when he saw in a rural Road barn. road, farmhouse and the lawn front alongside from car were two men parked fifteen Standing about feet in behind pulled The urinating. to be officer appeared who intent, explained suppres- at the car with as he the the parked and whether hearing, happening ascertain what was sion to out his and wrong. He of vehicle anything stepped car, individuals, as he their noticing, passed the approached cans. containing unopened beer that it contained cooler doing, they men were they the what When the officer asked the at the Williams coming that were from races replied they The officer and had urinate. Speedway stopped Grove licenses, they produced, which and to see their driver’s asked of validity check the licenses returned to his vehicle to on warrants outstanding were and to determine whether there check, the license conducting for of men. As he was either his vehicle behind the parked a fellow officer and arrived the licenses were valid and patrol verifying car. After that men, no for of the two that there were warrants either cruiser; defendant/appel- back out of his called stepped officer (the operator parked lant owner and Brett Strickler car) him; him; license to returned Strickler’s driver’s over the road appropriate stop along him it was not advised him for his property; and on someone else’s thanked urinate At his cruiser. cooperation; began walking and toward testified, go, although was free to point, he later Strickler Strickler that fact. is no evidence that he informed there car, his the officer turned taking steps After a few toward illegal if had his anything and asked Strickler he around not, he car. answered that did When Strickler if I through “if mind took a look then asked him he wouldn’t hearing, the suppression his As testified at car.” the officer having form of suspect any he no reason to Strickler had Nevertheless, request- his for contraband in the car. reason ing Strickler’s if consent to search was see there was “[t]o anything In illegal response in his car.” request,

[Striekler] hesitated. He stood there and looked at me and scene, looked at [the officer] who assisted me and I him, know, explained you yes, he have to say you didn’t know, I that, and him again. then asked After I saying said, you okay Do mind. if you just Is it with we take a search quick your vehicle[?] At point, Striekler consented to a search- Upon search. car, found, ing the the officer between the console seat, front passenger object that looked smelled like a marijuana pipe. smoking charged Striekler was arrested and § with possession drug paraphernalia, P.S. 780- 113(a)(32). pre-trial marijuana

Striekler filed a suppress motion to officer, pipe grounds on the arresting having had no belief that crime had occurring, occurred was requested search, and, had impermissibly consent to a addition, that search drug paraphernalia was outside scope gave. suppression consent that court hearing, conducted at which the Commonwealth elicited the testimony officer, of the arresting presented and Striekler no witnesses or other evidence. At hearing, expressed the court reservations about relying upon any admonition the officer concerning N.T., voluntariness the consent. Nov. 1995, 18 that asks (stating somebody, you officer “[w]hen know, something, they to do expect don’t—I don’t Defen- dant to be with familiar Constitutional law or something[;] [u]sually you when an officer asks something, this that idea well, to, he didn’t really have that’s meaningless large to extent”). The court subsequently granted the suppression remedy, analogous finding case v. Commonwealth Lo- pez, (1992), 415 Pa.Super. 609 A.2d 177 in which the Court Superior deemed the consent to a vehicle search invol- untary and that directed the fruits of the search be sup- pressed. The suppression court determined that the officer’s initial detention of Striekler and his companion to ascertain they doing what were proper, had been but the subsequent car, to search request coming as it purpose did after the as it illegal was was accomplished, had been such detention cause. The or suspicion probable on not based Strickler’s subse- illegality tainted court concluded that consent. quent concluded, on the basis Superior Court appeal, the

On Hoak, 700 A.2d 1263 its in Commonwealth decision (en court, banc), by an divided equally (Pa.Super.1997) aff'd (1999), the trial court had 734 A.2d 1275 that 557 Pa. motion. Acknowl suppression in granting erred Strickler’s had not officer Township police Allen edging Upper go, Superior that he free to Strickler informed preceding request for officer’s actions reasoned clearly search had communicated consent to nevertheless Strickler’s deten that the traffic therefore stop, Strickler tion, Superior Court’s assessment entailed had ended. circumstances, proceeding of the relevant broader evaluation as follows: of the initial the officer

[Fallowing stop, conclusion car, and asked began to walk back his but then turned if in his and if he anything illegal had car [Strickler] he Although initially consent to a search. [Strickler] would hesitated, he explained when the did have consent, agreed to the search. As Hoak [Strickler] determined, conduct, we some find court absent coercive automatically did not trans- this questioning [Strickler] encounter into an unlawful seizure or form the non-coercive detention. ... the record shows that there Importantly, Also, only arresting were two officers at the scene. [the permis- he asked officer] [Strickler] testified when car, sion search neither threatened [Strickler] his nor his further stated any way [The officer] raised voice. force, out gun any sign that he did not take show Moreover, so. no nor do there is [the officer] did other came physically officers touched or into evidence the [Strickler], with contact circumstances, the

Under the court stated that trial subject to an unlaw- court’s Strickler was determinations un- involuntary ful that his consent was were detention and 56

justified. Accordingly, Superior the sup- Court reversed the pression order remanded the further and case for proceedings. appeal This Court allowed address the merits of trial appellate and courts’ conflicting approaches to a consent search following investigative an detention.1

The Fourth Amendment protects against unreason seizures, able searches including entailing those only Mendenhall, brief detention. United v. See States 446 U.S. 544, 551, 1870, 1875, 100 64 497 S.Ct. L.Ed.2d (1980)(opinion Court).2 A announcing judgment search conducted without warrant is deemed be unreasonable and therefore constitutionally impermissible, unless established exception Bustamonte, applies. 218, 219, 412 Schneckloth 93 2041, (1973). 2043, 36 L.Ed.2d 854 One such exception is consent, 219, voluntarily given. See id. at 93 S.Ct. at 2043-44. The central Fourth Amendment inquiries consent cases entail validity assessment of constitutional of the citi zen/police consent; giving and, encounter rise to the ultimate ly, id.; voluntariness consent. See see also Common 517, 528, 427, (1999).3 wealth v. Pa. Cleckley, 558 A.2d 433 Appellate granting suppression 1. review an order entails adherence suppression to the findings they court’s factual the extent are record; supported by by consideration evidence of the offered defendant and so much of the Commonwealth's evidence as remains record; uncontradicted when read in the context entire and de legal novo review of the conclusions drawn from such evidence. See Pickron, 246, 241, 1093, Commonwealth v. (1993). 535 Pa. 634 A.2d Although opinion merely 2. the lead judg- Mendenhall announces the Court, pertinent ment of principles opinion from that were by 491, majority Royer, endorsed of Justices in Florida v. 460 U.S. (1983). S.Ct. (four-Justice 75 L.Ed.2d 229 See id. at 103 S.Ct. at 1326 standard); plurality opinion)(endorsing the Mendenhall id. (Blackmun, J., 103 S.Ct. at dissenting)(indicating 1332-33 "I plurality opinion’s adoption concur in the of the Fourth Amendment ”). 'seizure' proposed standard Justice Stewart in Mendenhall This essentially Court equivalent principles enunciated an set of in Common- Jones, 364, 373, (1977), wealth v. 474 Pa. 378 A.2d a decision Mendenhall; preceded which specifically the Court perti- endorsed the Matos, principles Mendenhall/Royer nent from in Commonwealth v. 449, 457-58, (1996). Pa. 773-74 A.2d Cleckley, In genesis this described of the voluntariness focus context, in the Fourth supporting Amendment rationale

57 lawful, is found be volun underlying encounter Where the Where, however, a focus. the exclusive tariness becomes seizure, an by unlawful preceded has been consensual search of the evidence exclusionary requires suppression the rule both of a government the a demonstration obtained absent illegality the and causal chain between sufficient break the evidence, is not an assuring thus the search of the seizure See of and voluntariness. prior illegality, of the exploitation 501, 1323, 1326.4 497, 103 at Royer, 460 U.S. at S.Ct. of citi assessing the lawfulness

Accordingly, central, is whether or encounters, a threshold issue zen/police of citizen-subject has been seized. Instances not the (mere or aspect detentive involving no seizure or questioning encounters) by any not level of supported need be consensual validity.5 citizen/police maintain Valid suspicion in order requiring relinquish "an departure intentional from waiver construct right privilege,” see a known Johnson ment or of abandonment 1023, Zerbst, 458, 464, 1019, (1938); 1461 S.Ct. 82 L.Ed. U.S. 58 304 235-36, Schneckloth, 412 at S.Ct. U.S. 93 reviewed the determination that, 2051-52, analysis appropriately waiver at to the effect while the involving preserva guarantees the applies safeguard constitutional defendants, pertain it does not tion of a fair trial criminal Amendment, Cleckley, wholly protections see 558 Fourth different 522-24, 430-31; that the 738 at and concluded federal Pa. at A.2d rights adequately privacy guaran protects the voluntariness standard I, Pennsylvania See id. Section 8 of the Constitution. teed under Article 528, at A.2d at 433. 738 A generally 4. See 3 R. Wayne LaFave, Search and Seizure: Treatise on (3d ed.1996) 8.2(d), (stating § fruit “[t]he at 656 Fourth Amendment poisonous tree also to invalidate consents which doctrine extends voluntaiy”)[hereinafter Such treat- are “LaFave, Seizure”]. Search applicable analogous in the Fifth Amendment context. ment 219, 2248, York, 200, generally Dunaway 442 U.S. 99 S.Ct. v. New 2260, (1979) (concluding that 60 824 defendant’s confession L.Ed.2d intervening events broke suppressed, "[n]o should have been confession”); illegal [defendant’s] between detention and connection Illinois, 590, 2254, 2261, 45 422 U.S. 95 S.Ct. L.Ed.2d Brown v. States, 471, 486-88, (1975) (same); Wong Sun v. United 371 U.S. 416-17, (1963)(requiring, in the context of a S.Ct. 9 L.Ed.2d violation, only of voluntariness Fifth Amendment standard met, "sufficiently be act of be also that defendant’s statement an but taint”). primary purge free will to Bostick, 429, 434-35, 111 generally 5. See Florida v. that, (1991) (explaining when the officers L.Ed.2d 389 even involvement, they may generally suspecting have no basis criminal which fall interactions constitute seizures within two categories, distinguished according to degree restraint upon a liberty: investigative citizen’s or Terry detention stop, subjects period which an individual to a and a stop detention but is not so as to coercive constitute functional arrest; equivalent arrest, custodial detention or permissible more restrictive form of encounters. See Ellis, at Pa. 662 A.2d 1047. To maintain constitu- tional an validity, investigative detention be supported must by a suspicion reasonable and articulable that the person seized is criminal engaged activity may and continue only so long necessary as is to confirm or dispel suspicion; such see Lewis, 501, 508, 619, v. Pa. Commonwealth 535 A.2d 636 623 (1994) (citation omitted); whereas, a detention custodial is legal Ellis, if only probable based on cause. See 541 Pa. at 294, 662 at 1047. guide inquiry A.2d To the crucial as to effected, whether or not seizure been has the United States Supreme has an objective devised test entailing a whether, determination in view of all surrounding circum- stances, a person reasonable would have believed he was Mendenhall, 554, free to leave. See 446 U.S. at 100 S.Ct. at 1877; 502, 460 Royer, U.S. at 103 S.Ct. at 1326-27. See circumstances, note 2.6 In supra evaluating the whether, focus is directed toward physical means of force or show of authority, citizen-subject’s movement has in questions long ask police convey an individual as the "so do not message compliance request required”); Immigration with their is 216-17, 210, and Delgado, Serv. v. 466 U.S. 104 S.Ct. Naturalization 1758, 1762-63, (1984); 497-98, Royer, 80 L.Ed.2d 247 at 460 U.S. 103 ("[i]f S.Ct. at 1323-24 there is no detention —no seizure within the meaning Fourth rights Amendment —then no constitutional have Ellis, 285, 293-94, infringed”);

been v. Commonwealth 541 Pa. 1043, (1995). A.2d D., 621, 1547, 6. In Hodari U.S. 111 S.Ct. 113 L.Ed.2d California (1991), Supreme the United States Court enunciated a modified occurred, determining construct indicating for when a seizure has physical or a authority force necessary. submission to assertion of 625-26, Court, however, See id. at 111 S.Ct. at 1550. This has deemed I, such modified standard with inconsistent Article Section 8 of the and, Pennsylvania accordingly, Constitution directed adherence to the Matos, 459, Mendenhall/Royer standard. See 543 Pa. at 672 A.2d at 774. 553, Mendenhall, 446 at way See some been restrained. determination, In this courts must making at 1877.7 100 S.Ct. sin- with no totality-of-the-circumstances approach, apply as whether dictating factor ultimate conclusion gle seizure has occurred.8 case, his dispute does not

In the Strickler present Township police Allen consti- Upper with the initial encounter detention, arresting investigative or that tuted lawful support requisite suspicion officer had the reasonable contends, however, that once the initial seizure.9 Strickler cite him for his the decision not to conduct made him, investigation his license had returned driver’s Chesternut, Michigan v. 486 U.S. 7. See also inquiry (1988)(characterizing core wheth 100 L.Ed.2d 565 as the police to a “have communicated er the conduct would liberty ignore presence go person police not at that he was business”); Lewis, at Paren about 535 Pa. 636 A.2d thetically, gov Court has fashioned a modified construct citizen-subject’s erning the restraint move instances which independent police, with ment results from factors the encounter Bostick, example, 439, on 501 U.S. at his location a commercial bus. determining (articulating appropriate test for 111 S.Ct. at 2389 conduct would whether a seizure had occurred “whether the person person to a that the was not free have communicated reasonable encounter”). requests to decline the or otherwise terminate officers’ Supreme explained The its admonition there is no 8. has “litmus-paper distinguishing a encounter from a test consensual seizure,” 1329, 506, Royer, 460 U.S. at 103 S.Ct. at as follows: necessarily designed imprecise, because it is to assess the The test is conduct, whole, police taken as a rather than coercive effect Moreover, particular isolation. focus on details of that conduct in liberty person prompting a to con- what constitutes restraint on vary, only not to "leave” not with the clude that he is free will issue, particular setting which police conduct at but also with the conduct occurs. Chesternut, 574, S.Ct. at 486 U.S. 108 1979. argument appear could be sustained. 9. Nor would it arresting companion his testified he observed Strickler and which, public roadway adjacent property, urinating to a farm beside predicate prevailing precedent, may for the under be treated as the summary disorderly conduct. See Commonwealth offense 506-07, Williams, (1990). Pa.Super. 568 1288 A.2d Villarreal, generally Wash.App. P.2d 1067-68 State v. public provided (1999)(finding an observation of urination officer's disorderly investigation suspicion supporting an reasonable officer's conduct). complete and purpose of the lawful fully detention achieved. As there were no facts or circumstances that could have given rise to a suspicion of independent activity criminal justify detention, sufficient to further Strick- argues, essentially, initial, ler that the valid detention evolved second, into a unreasonable and unlawful one. According to Strickler, the asserted second detention entailed coercive as- pects that rendered his ostensible consent to the search involuntary. As Strickler urges determination that his encounter with the was illegal, acceptance argu- ment impose would upon the burden the Commonwealth of voluntariness, demonstrating only also, but break chain of illegality prior of his rendering consent. involving

Situations a request for consent to search follow- ing initial lawful detention posed have analytical difficult courts, see, questions for e.g., Sierra, Commonwealth v. Pa. Court), 728 A.2d 644 (1999)(equally divided and have subject been the of extensive commentary. See 9.3, § LaFave, at 85-135. Frequently the Search and Seizure argument that, is made such cases although the initial may valid, detention be constitutionally warning some admonition be given should to ameliorate the coercive aspects of the initial detention prevent them from infecting the subsequent Thus, request for consent. in the context of a traffic or similar stop, once the purpose for the stop has been completed, the question arises: Does the individual have objective (or not) reasons to believe that he is free to end police/citizen encounter? The decisions of the Ohio Su- preme Court and the United States Supreme Court in Ohio v. Robinette are illustrative and merit close examination in ad- dressing inquiry.10 this Although arising consent issue in Robinette followed a conven- stop, tional whereas already Striclder’s stopped vehicle was him, when the officer confronted United States Court has analogized degree the of intrusiveness involved in stop the usual traffic to the restraint involved investigative in an present- detention such as is See, 420, 439, e.g., ed here. 3138, 3150, McCarty, Berkemer v. 468 U.S. 104 S.Ct. (1984). 82 L.Ed.2d 317 analogy obviously This works in reverse; therefore, opinions the Robinette pertinent. are Robinette, 653 N.E.2d 73 Ohio St.3d

In State v. I”), defendant, D. Robinette (1995)(“Robinette Robert the on an Ohio (“Robinette”), speeding for a violation stopped Sheriff County Deputy highway Montgomery interstate in drug Newsome, assignment whose involved patrol Roger to: obtain Robi proceeded Deputy terdiction. Newsome license; check of Robi computer perform nette’s driver’s (which violations); ask no driving record indicated nette’s vehicle; of Robinette to stand step out his direct Robinette to camera; location; video activate mounted particular in a and return Robinette’s license. warning; issue a verbal traffic question then “One Deputy id. at Newsome asked: See any illegal contraband you gone: you carrying are get before kind, like weapons drugs, anything of your Any in car? not, that he was that?” When Robinette said if I search car? Make sure you your asked: “Would mind his consent to the there’s there?” Robinette lent nothing search, pill and a small methamphetamine which revealed a and with marijuana, charged amount of and was arrested Robi entailing possession illegal drugs. criminal offenses search; evidence obtained sought suppress nette motion, pled of his no contest and was following denial however, Appeals, reversed The Ohio Court guilty. found conviction, Supreme and the Court affirmed Ohio at 699. decision. See id. four-to-three In its Court confirmed opinion, Ohio but validity stop, question initial traffic identified the of that disposition validity to its as “when the most central I, 653 at 697. The court Robinette N.E.2d stop ceased.” See that, Robinette’s Deputy found when Newsome returned check, aspect of the every a license performing vehicle after resolved, all investigated had speeding violation been license and that remained was return Robinette’s See id. The court determined warning. issuance of a traffic asking that the de- deputy’s additional actions— camera, vehicle, video and the subse- activating part of contraband —were questioning possession related to quent stop. id. at 697-98. Since purpose unrelated to the deputy identify unable to articulable facts giving rise to a suspicion some separate illegal activity justifying an detention, extension of the the court viewed the continued detention as illegal. See id. As it determined that Robi- nette’s consent was during obtained of an course illegal seizure, the court found that the State was required estab- lish that the consent was sufficiently removed from the corre- sponding taint. id. at 698. Since there was no apprecia- lapse ble of time between the detention and the request search, deputy sheriff prefaced his request with the phrase “before you get gone,” it discerned no circumstances which might have served to break or weaken the effect of the detention, prior the court deemed Robinette’s consent to have resulted from the illegal that, detention. See id. (concluding “[gjiven circumstances, Robinette felt that he had no choice but to comply”). broadly,

More Ohio expressed concern that, at the point the encounter at which consent was sought Robinette, from an average citizen would not likely have appreciated that he was no longer subject to a valid detention. The court explained:

The transition between detention and a consensual exchange can be so seamless that the eye untrained may not notice that it has occurred. The undetectability of that transition may be used police officers to coerce citizens into an- swering questions that they answer, need not or to allow a search of a vehicle that they are not legally obligated to allow. present

The case offers an example the blurring between a legal detention and an attempt at consensual interaction. Even assuming that Newsome’s detention of Robinette was legal through the time when Newsome handed back Robi- license, nette’s driver’s said, Newsome then question “One you get before gone: you are carrying any illegal contra- in your band car?” Newsome tells Robinette that before he leaves Newsome wants to know whether carry- Robinette is ing any contraband. Newsome does not ask if may he ask a question, it, he simply asks implying that Robinette must con- interrogation The then he leave. may respond before free to or that go told that he is is never tinues. Robinette question option. may answer the police in a officer’s they validly are Many believe that people them. interrogate as the officer continues custody long hand and the accouter- upper retains the legal license the officer lacks authority. That ments citizens, most them is unknown to continue to detain as the away to walk would not feel free person to him. officer continues address (citations omitted). While I, at 698 653 N.E.2d an important, are that consensual encounters acknowledging enforcement, law tool available to investigative constitutional subjected to a who are persons court indicated to likely for are less prior to the consent request detention answer the required questions are not they realize that (“[a] at 699 ‘consensual encounter’ by police. id. posed with likely is be imbued following detention immediately detention”). Indeed, in situation aura of the authoritative detention, initial the Ohio court concluded involving an “[wjithout detention, succeeding clear break from reason, this at all.” Id. For is not consensual encounter mandating rule adopted “bright-line,” prophylactic court activity that, suspicion of criminal in the absence of reasonable violation, once an predicate from the traffic separate apart concluded, must officer initially police stop valid detention has ended before legal inform motorist (stating to search. See id. that “citizens seeking consent by the clearly be informed stopped [must] traffic offenses a valid detaining they go when are free to after officer detention, in a attempts engage consensual before interrogation”). The indicated that such rule would court from unwarranted protect rights citizens serve id. at by police officers. See “fishing expedition[s]” conducted 699. however, decision, Supreme review of the Ohio Court’s

On in an eight-to-one Court reversed the United States Robinette, 33, v. Ohio decision. See (1996)(“Robinette II”).11 136 L.Ed.2d 347 majority fo cused the inquiry upon that, the Ohio requirement court’s upon completion stop, of a traffic a motorist be advised is free to go. See id. at 117 S.Ct. at 419. Importantly, however, the Court also stated that believe that the

[w]e issue as to the continuing legality of “predicate the detention is a to an intelligent resolution” of the question presented, and “fairly therefore included there- issue, in.” The parties have briefed this and we proceed to decide it.

Id. 117 S.Ct. at Although the Court recognized that the Ohio deputy sheriffs stated reason for asking Robi- nette to exit his vehicle was to question him possible about vehicle, contraband his the Court subjec- found the officer’s tive intentions irrelevant. See id. (citing Whren United States, 806, 813, 1769, 1774, 517 U.S. 116 S.Ct. 135 L.Ed.2d 89 (1996) (finding that a police subjective officer’s intent is irrele- vant so long as there is objective justification for actions)). officer’s The Court found that the officer was clearly justified in detaining Robinette for speeding, based on observations, additionally justified in asking Robinette car, step out of “subjective thoughts notwithstanding.” II, 38, Robinette 519 U.S. at 117 S.Ct. at 421 (citing Pennsyl- Mimms, 106, 6, vania v. 434 U.S. 111 n. 330, 6, 98 S.Ct. 333 n. 54 L.Ed.2d 331 that (1977)(holding “once a motor vehicle has been lawfully violation, detained for a traffic police officers may order the get driver to out the vehicle without violating the Fourth Amendment’s proscription of unreasonable seizures”)). searches and

The majority then turned to the question of the per se rule imposed by outset, the Ohio court. At the emphasized it that it had consistently eschewed bright-line rules in favor of assessment of the totality of the circumstances. See Robinette II, 39, at 117 S.Ct. at 421. The Court then reviewed a series of Fourth in Amendment cases which it had applied a below, 11. As further discussed Ginsburg Justice concurring filed a opinion agreeing majority pertinent with the respects, all and Justice Stevens authored a dissenting opinion. stand-alone Schneckloth, 412 U.S. closely upon test, focusing most totality rejected Court at in which the at not be valid unless to search could that a consent argument right request. that had a to refuse knew the defendant knowl- (stating “[w]hile at 93 S.Ct. at See id. taken factor to be to refuse consent one right edge knowl- account, government need not establish into consent”). Analogiz- as the non of an effective edge qua sine as Schneckloth, per se rule rejected Ohio’s ing II, 519 as Robinette unnecessary, impractical. well then remanded at 421. The Court U.S. at 117 S.Ct. with its proceedings opinion. further consistent Ginsburg acknowledged concurring opinion, In her Justice prophy- of a imposition that had motivated Ohio’s the concerns Robinette Ginsburg emphasized rule.12 lactic Justice interpreting their state courts from prevent does not opinion protection of provide greater as to own state constitutions so than mandated the federal Constitu- rights by individual II, 422-23 117 S.Ct. at See Robinette 519 U.S. tion. “[tjoday’s re- J., opinion (Ginsburg, concurring)(stating not Supreme pass Court does versing the decision the Ohio rule[;] [t]his on the wisdom of the first-tell-then-ask judgment that the Court’s opinion simply Court’s clarifies Ohio not, in Ohio is under this Court’s police instruction to officers of the Federal Consti- controlling jurisprudence, the command tution”). agreed

In his with dissenting opinion, Justice Stevens Fourth se majority per that a rule was mandated Ginsburg Justice stated: unique vantage point, Ohio’s courts observed that From their searches, giving way stops regularly were to contraband the State consensual, even had reason to characterized as when officers no "Hundreds, suspect activity. appellate illegal Ohio court noted: One routinely delayed being perhaps thousands of Ohio citizens are relinquish asked to uniformed officers their their travels and privacy luggage right to in their automobiles J., II, 40-41, (Ginsburg, U.S. at 117 S.Ct. at 422 concur- (citations omitted). Ginsburg acknowledged the Ohio ring) Justice also depart while an court’s that most citizens would not feel free concern them. See id. officer continues address Amendment, but indicated that he would have affirmed Ohio disposition court’s upon based the conclusion that Robi- nette’s consent to the search of his product vehicle was the II, unlawful detention. See Robinette 519 U.S. at (Stevens, J., at 424 dissenting). Justice Stevens began his analysis by reiterating objective, Mendenhall/Royer “free-to-leave” test for determining whether a seizure has II, been effected. See Robinette 519 U.S. at 117 S.Ct. at (Stevens, J., 424-25 dissenting). He indicated that a reason- person able in position Robinette’s would not have felt free to leave as search, the officer sought consent to based upon the following facts: the officer’s initial question after handing Robinette back his sought license a response you get “before gone”; Robinette was directed outside his vehicle and before a recorder; video and Robinette had not been informed that the purpose of the initial detention had been achieved and he was free to II, leave. See 519 U.S. at 117 S.Ct. at (Stevens, J., dissenting). More broadly, Justice Stevens agreed with the Ohio court’s conclusion that most citizens subject to continuing police interrogation following detention would continue to believe that they validly remain in the custody. officer’s See id. at 33 n.& 117 S.Ct. at 425 & n. 4 Berkemer, (citing 468 U.S. at 104 S.Ct. at 3148 (stating that “[cjertainly few motorists would feel free either to diso- bey a directive to pull over or to leave the scene of a traffic stop so”)). -without being they told might do Justice Stevens also indicated belief that many motorists have an interest in preserving their privacy and would not likely consent to additional delay roadside if they fully appreciated their rights. II, See Robinette 47-48, (Stevens, 117 S.Ct. at 425 J., dissenting). He noted that the Robinette record indicated that the officer had successfully obtained consent to search times a single year, deemed, which itself, he in and of indicate that “motorists generally respond a manner that is contrary to their self-interest.” Id. facts,

Based upon and what perceived objec- reality tive of the inherently coercive nature of stops, Justice Stevens concluded that the Ohio court was correct

67 subject was of a continu- that Robinette the its determination the of his car. time consented to search ing at the detention (Stevens, 50-51, II, at 427 U.S. at 117 S.Ct. See Robinette 519 suspicion no to J., found dissenting). Since he detention, Stevens investigative Justice the continued support id. deemed this that it was unlawful. See He concluded of imposition of the Ohio court’s independent conclusion to be it. no reason to disturb a rule and therefore found bright-line 45-46,117 424. at S.Ct. at See id. has been criticized for in Robinette II majority opinion

The resolve, unduly truncated offering or expressly to failing of, the and lawfulness of question resolution the of existence circum- was obtained under such at the time consent detention Nevertheless, framed as such was question stances.13 II, 38, U.S. at see Robinette 519 disposition, to the essential (“the continuing of the legality 117 to the at 420 issue as of the intelligent to an resolution’ ‘predicate detention is it indicated that question presented”), expressly the Court (“we it, id. to decide undertaking proceed [the was to answer it said that the Court did legality question]”), fairly cannot be not, degree, address the at in some some least sense sense, it that general In the is clear the inquiry. seizure most impediment no federal constitutional the perceived Court following typical stop protocol immediately consent Warrant, See, Visser, Cause, e.g., K. Without a Probable Chris Any Meaning Suspicion: Is There Fourth Amendment Reasonable Car?, (1999) Driving (contending 35 L.Rev 1718 While Hous majority question the Robinette II failed address whether search); when the officer asked for consent Robinette "seized” III, Stop George Dery M. “When Will This End?”: United Traffic Every Supreme Dodge Detained Motorist’s Central States Court’s of Robinette, (1998) (stating St. v. 25 Fla. U.L.Rev. Concern—Ohio issue); "skipped "dodged,” “glossed Court over” and over” that the Maahs, and a Consen- Reason to Believe: When Does Detention End R. Robinette, Ohio Begin? Analysis An N.U. sual Encounter Ohio of (1996) aside” (stating Court “brushed L.Rev. Bettman, issue); Brown Identical Constitutional Lan- Marianna cf. Robinette, guage: Is Do? The Case State v. What a State Court To Ohio (1999) "rejected” (stating 32 Akron L.Rev. Lassiter, issue); analysis Eliminat- Court's of the Christo Ohio Cap. Interrogations, 27 Stop ing the Lexicon Consent Traffic from (1998) (same). U.L.Rev. from which would arise the mere fact a prior, lawful detention, subsequent or of questioning unrelated to the pur- pose generally Dery, detention.14 See ‘When Will End?”, This 25 Fla. Stop (noting St. U.L.Rev. Traffic that, issue, “[b]y directly to going especially the consent after mentioning importance validity the continued detention, deeds, signaled more powerfully than words, detention here lacked constitutional significance”). case,

In present suppression court did have the (as benefit of Robinette II its opinion was issued in the year), its evaluation with preceding and clashes Robinette II in First, regards. several while the suppression court legiti- mately expressed regarding concern the effect of prior the consent, lawful detention Strickler’s see upon (discussing infra the of appropriateness such consideration in the totality as- sessment), essentially it per elevated this concern to a se rule to the effect that a law enforcement cannot proceed to request detention,15 following consent to search rather than balancing pertinent it other against factors. Read against II, Robinette such an approach is unsustainable under Fourth Amendment jurisprudence. the Correspondingly, suppression Indeed, given timing Deputy 14. the of Newsome's return of Robinette’s (immediately driver’s completed documentation comput- after he had check, step er directed to Robinette out of vehicle and stand in location, camera), particular and activated a video the circumstances presented appear greater in Robinette would to have involved a show (or authority proximity at subsequent request least one closer to the consent) typical stop. than in a commentary In addition to suppression hearing, quoted its the supra, suppression analysis opinion the proceeds court’s in its as follows: In the it is arresting instant case clear that [the officer] detained companion Strickler and his they order to ascertain what were doing. proper. That detention was every- After he determined that order, thing immediately handing was in papers and after Strickler’s him, back to asked [the officer] if he could search the car. That request illegally prolonged point, detention. At Strickler was reason, detained suspicion probable for no based on no reasonable or consent, point illegal, cause. Because detention at if any, was tainted and therefore invalid. analysis appear Such possibility would not allow for the that a mere might following encounter ever occur a detention. an do not reflect legal conclusions findings factual court’s by required factors as range of salient of the entire evaluation For which it relies. precedent upon II and the did not discuss the opinion court’s example, suppression testimony that advised uncontradicted arresting officer’s requested required consent he was Strickler search,16 it consider absence expressly nor did of the officer.17 part show on the authority excessive of the Nonetheless, interpretation lan one reasonable suppression currency II lends some guage of Robinette II purports Since Robinette disposition. court’s ultimate a predi as “continuing the detention” legality address all deeming decision could be construed inquiry, the cate encounter between with overall circumstances connected single, reflect a albeit and Robinette to Newsome Deputy un Our jurisprudence detention. constitutionally-permissible Constitution, I, Pennsylvania der Article Section 8 in the however, a consent conducted not sustain search would to, of, wholly scope unrelated its but which context detention, constitutionally-valid can no since there be ongoing stop a traffic or similar following independently detention see, v. Me suspicion, e.g., Commonwealth absent reasonable (1996), lendez, A.2d Pa. reasons that is circumscribed detention scope such, Therefore, as if Robinette II is construed it.18 justify admonitions, pertinent to Although that such while it has been stated 16. voluntariness, underlying to the issue are not relevant the issue see, instance, e.g., in R. there been a detention the first whether has Stack, Giving Concept Free and Airport Drug Content to Searches: 183, Consent, (Feb.1991), infra, Voluntary as discussed 193 77 Va. L.Rev. disagree we with such assertion. 252, Pa.Super. 609 Lopez, at A.2d upon trial reliance 415 court's 17. 177, helpful, Lopez quite were is also not as circumstances at example, Lopez, request presented from here. For different those prior of the to the return citizen- for consent to search occurred Lopez, registration. 415 vehicle See subject’s driver’s license and 256, Pa.Super. at A.2d 609 at 179. 1153, Zhahir, 545, 559, A.2d 1160 v. 561 Pa. 751 See Commonwealth 18. 1868, 1878-79, Ohio, 1, 19-20, (2000)(citing 88 Terry v. S.Ct. 392 500, (1968)). 103 generally Royer, 460 U.S. at S.Ct. See 20 L.Ed.2d 889 Berkemer, 439, 3150; 1325-26; S.Ct. at United States 468 U.S. at 104 at 70 for considering rejection

there is sound basis its on state grounds. constitutional however,

Alternatively, analysis the seizure contained in II against can be read directly the Robinette I holding court’s that the lawful immediately detention ended after Deputy Newsome returned to Robinette’s vehicle after I, completing the check. license See Robinette 653 N.E.2d at 697. The United Supreme obviously disagreed States assessment, did, with citing, and discredited such as it to support Mimms the conclusion that Robinette was still subject to lawful detention time he was ordered out of his vehicle and directed to in a particular stand location. II, 38, See Robinette 519 U.S. at 117 at 421. Since this represents the full extent of the express Court’s seizure it analysis, would fair also be to construe Robinette II not as eliminating possibility analytical of an division overall police/citizen separate, interaction into two successive encounters, merely but as moving endpoint of the initial lawful later point detention when Deputy Newsome warnings administered traffic and returned Robinette’s driv er’s documentation.19 Reading Robinette II in this manner squaring aids in the decision with our own jurisprudence, as well as the United States prior Court’s decisional Brownlee, law.20 generally People 501, See v. 186 Ill.2d 239 th Jones, 860, (10 44 Cir.1995)("[s]ubsequent v. F.3d 872 or concurrent questioning justified are only detentions when the officer has 'rea suspicion’ illegal drugs sonable transactions in other serious (citations Pless, omitted)); 209, Pa.Super. crime" v. Commonwealth (1996). A.2d shifting 19. endpoint stop obviously This for the traffic essential leaving open possibility subsequent of a consensual encounter. If, held, Deputy as Ohio court Newsome’s dictation of Robinette’s were to occurring movements be seen as after the conclusion of the stop, possibility succeeding traffic of a mere encounter would essentially be foreclosed absent a clear in the break chain of events. Freeman, 82, 90, Commonwealth 563 Pa. A.2d (2000) (noting request that a that an individual move some regarded persuasive manner has been evidence that a seizure has State, (citing occurred (1999))). Ferris v. 355 Md. 735 A.2d noted, Terry progeny strongly suggest As v. Ohio and its (viewed stop equivalent Terry stop) as the appropriate of a is not an

71 “[cjertainly 556, (1999)(stating that 25, 563 713 N.E.2d Ill.Dec. that, following the proposition for the Robinette does not stand may a vehicle officers detain stop, of a lawful traffic conclusion any activity and for any illegal suspicion without reasonable and obtain time, ultimately request long they so amount of car”). to search the permission treated essentially Supreme This how Ohio remand, not Robinette’s encoun II on as it did view Robinette continuous lawful single, Newsome as Deputy ter with Rather, accepting the United States even detention. minimum) (at endpoint shift the to Court’s decision to Robinette’s license stop traffic the moment when administered, the Ohio court warning returned and the subject of a been the subsequently found that Robinette had Robinette, 80 Ohio State v. detention. See separate, unlawful III’). (1997)(“Robinette 762, In 234, 685 N.E.2d 771 St.3d search,21 request Newsome’s for consent Deputy relation to encounter, as circumstances of the the court revisited the follows: indication that give any did not Robinette

Newsome’s words implied just opposite rather go, he was free to but —that go not until he answered Newsome’s Robinette was free potential con- inquiries about unlawful vehicle within which make suspicion. stop supported by See duct to the reasonable unrelated 19-20, Notably, the Terry, 88 S.Ct. at 1878-79. at commentary essentially are universal in and the associated decisions concluding only ground stopping Deputy valid Newsome’s highways, and no of the laws of Robinette related to enforcement present. suspicion possessed contraband was that Robinette request Notably, distinguished for consent to the Ohio court this 21. preceding inquiry Robi- Deputy Newsome's as to whether search from Although no reasonable possessed contraband. it found nette inquiry, to make the latter suspicion support continued detention illegal drug trafficking the Ohio court concluded curtailment to, itself, justify importance public was an interest of sufficient purpose making such an for the limited the detention of individuals Court, III, however, at This inquiry. See Robinette 685 N.E.2d logic, Rodriquez, Pa. has eschewed such see Commonwealth (1992), appeal this was not allowed or 614 A.2d position. reconsidering argued end of this established toward the 775-76; Melendez, Matos, A.2d at 544 Pa. 543 Pa. at ("[n]o may ‘investigation’ person stopped for be 676 A.2d at activity”). suspect criminal in the absence of an articulable reason additional of questions. timing Newsome’s immediate transition from giving warning Robinette the for speeding into questioning regarding contraband the to request and is troubling.... search

When these factors are with police combined a officer’s superior position authority, of person would compelled have felt submit questioning. officer’s coercive, questioning While Newsome’s was not expressly surrounding request circumstances to search made questions impliedly coercive.... From the of totality circumstances, it merely appears Robinette submit- ted to “a claim of authority” lawful rather than consenting a voluntary act of will. free III, 685 at conclusion, N.E.2d 770-71. Given this the court was able to hold that Robinette’s consent was warranted, involuntary suppression and Robinette II notwith- standing. See id. at 771-72. review,

Upon also interpretation we endorse an Robinette II for which allows the possibility of a mere encoun or following ter similar stop proceed detention and totality the assessment of the circumstances.

Various courts and commentators have frequently set forth non-exclusive lists of factors deemed relevant to the determi- nation of whether seizure has For been effected. example, presence of police absence played excesses has particularly significant role States United jurisprudence.22 Physical police contact or direction of a citizen-subject’s movements has also been regarded as a cen- See, Ferris, e.g., tral consideration. 785 at 505 (citing A.2d See, Bostick, 432, 437, e.g., 501 U.S. at 111 S.Ct. at 2388 (noting suggesting there was no evidence "gun that the officer’s Bostick, pouch, pointed was ever from removed its at or otherwise used manner”); Chesternut, 574-75, threatening ain 486 U.S. at at flashers, significant (finding the lack of and sirens command halt, display weapons, police operation of the car issue). "aggressive generally manner" as relevant the seizure 8.2(b), at 644-49. LaFave, Search and Seizure th(5 Cir.1988), Gonzales, 842 F.2d States v. United on, Hurtado, 905 grounds, United States other overruled th more (5 Cir.1990)). also stressed This Court has F.2d 74 factors, example, subtle officer, the location of the

the demeanor by the confrontation, expression used the manner citizen, interrogato- the content addressing ries or statements.

Jones, 371-74, 378 A.2d at 839-41. See Pa. Schneckloth, at 2049. 412 U.S. at 93 S.Ct. interac of a

Additionally, police/citizen in the context detention, that the existence a lawful we find that follows tion merits investigative initial detention character of the and in Significantly, as a relevant factor. consideration separate Jones, recognized this Court 378 A.2d at 474 Pa. at in non-detentive aspect is coercive even there some officers and citizens. law enforcement interactions between 371-72, police at that “a (stating id. 378 A.2d at thus showing authority and in be considered as uniform must uniform, in a simply he is exercising some force because a citizen and ad authority, symbol approaches of when he him”). Jones, however, reflects to questions dresses of quantum to the effect that the holding Terry of Ohio police/citizen mere encoun resulting force from the fact of a ter, itself, finding support in of is not sufficient and obviously is This of coercion See id. element detention. citizen, lawfully, albeit actually detain a police enhanced when time, stop. of or similar by of means a traffic period for some Moreover, Ginsburg, and as noted Justices Stevens court, and court, III other courts I Robinette Robinette necessarily commentators, this is not numerous coercive effect enforcement officer dispelled merely because law entirely ac or otherwise the citizen’s documentation returns driver’s While, analogous of the detention. complishes purpose (if hold) Jones, it strongly suggests II does Robinette itself, not, in of and the mere existence such effect seizure, Robi finding of a see support basis to sufficient 39-40, II, degree at at nette U.S. coercion applied prior in the weight encounter will affect the assigned to be totality to this factor in the overall assessment. Centrally, we are unable to discount the fact there at pertinent remains work dynamic some psychological based upon the positions authority relative as between the officer a citizen-subject, and an immediately-preceding exercise lyould the officer’s authority, and conclude that courts ill be to ignore advised dynamic totality assessment. Ferris, See generally at 502 (noting “pre- A.2d that the existing seizure enhanced the coercive nature the situation efficacy of the other factors in pointing toward the restriction of liberty”). [the detainee’s]

We agree also with I that the degree which the transition stop/investigative between traffic detention and subsequent can encounter be viewed seamless, I, see Robinette 653 N.E.2d at thus suggesting to a citizen that may his movements subject remain restraint, is a In pertinent regard, factor. many this courts and commentators have expressed sentiments similar expressed by -the Berkemer, United States 104 S.Ct. at 3148: “few motorists would feel free ... to leave the scene of without stop being told might they do so.”23 recognizing While the Supreme Court’s holding Robinette that the admonition to motorist that he is free to leave is not a constitutional imperative, presence the clear, or absence of a such endpoint identified to lawful the seizure significant, remains a salient factor in totality the assessment.

23. which, manifests when his car was interrogation concerning all time at which the discernible P.2d a traffic See, drivers the constructive ("[gjiven 1177, e.g., objectively, stop a change by laypersonf;] Ferris, concludes is often a difficult the fact that [the driver] a (Colo.1997); 735 driver pulled in status when it was A.2d at initially other criminal may depart”); over, [i]t is not sound to knowledge 503 lawful traffic LaFave, (noting return Search activity”). quite clearly as to the People that "[t]he moment at which legal question, immediately stop and Seizure [his] categorically impute v. Interest terminates, precise credentials had followed been moment at § H.J., 9.3(a), i.e., readily hardly seized 931 by to at emphasized, has Supreme Court

As the United States precepts constitutional by implement fashioned courts rules in terms expressed should be police activities regulate daily en applicable readily are understandable Belton, York v. 453 U.S. counters. See New (1981). law Reciprocally, 69 L.Ed.2d 768 that will ways can conduct officers tailor their enforcement performance courts in the their appellate trial and assist functions, enhancing corollary benefit of with the essential proceed in judicial of results consistency predictability that, in ends, evaluating a both we reiterate Toward ings. stop, a or similar a encounter that follows consensual objective circum central consideration will be whether a reasonable citizen that is stances would demonstrate to by presence The of an longer subject police. no to domination citizen-subject is free admonition to the effect express conclus objective is factor that favors such depart potent, a Jones, required As this Court “while not ion.24 stated so, a to investi approach do an officer who wishes to citizen citizen, ‘stop’ can gate crime but who does not wish by advising of his behavior predict consequences best answering questions.” he is free to leave without citizen Jones, n. at 840 n. 7. This 474 Pa. at 373 378 A.2d post- in the of a appropriate observation is even more context Ferris, 735 interaction. See A.2d detention (citing for the that “the failure law proposition cases a that he or is free to enforcement to inform citizen she significant suggesting factor terminate the encounter Amendment”); continued seizure under Fourth (“[i]f III, police pursue policy 685 N.E.2d at 771 n. 6 wish to searching probable reasonably vehicles without cause facts, articulable should ensure that the detainee despite knows that he or she is refuse consent free is, itself, "free-to-go” advice not a reason to conferral of assessment, as, forego totality example, presence of a drawn weapon any egress would be or the absence of available means remaining stop a traffic circumstances after the ostensible conclusion of would color advice. which officer’s request any search or risk that fruits might suppressed”).25 search be

In case, present the we first note the existence prior, lawful detention as a factor engrafting degree a coercion upon encounter. Also enhancing the coercive aspects a degree temporal are the and geographic elements recounts, of the interaction. Strickler As “[i]t was late at night, area, was not from police [he] and there were two officers with patrol marked cars with flashing lights standing Ferris, four See three to feet from away [him].” A.2d at 505 (indicating that such factors would have been unsettling to a person position).26 defendant’s seizure, more Looking closely of the prior character however, significant it is that the officer’s conduct appears have been quite restrained throughout period detention; indeed, level of coercion that was applied was less than that ordinary associated with an In the stop. instance, first it not necessary all, to stop Strickler at since he was already out Although vehicle. the officer Interestingly, 25. quoted Robinette III court also an amicus curiae brief from Americans for Effective Law Enforcement follows: warning may good police "Such a be practice, and indeed amicus many agencies among knows law enforcement our constituents routinely incorporated warning have into their Fourth Amendment field, they precisely consent forms that use in the but that —a [it] practice imperative. and not a constitutional An officer who includes warning request undoubtedly such a in his presents for consent stronger finding case suppression of voluntariness in a hearing, not suggest agencies we would that such do officers other- know, too, many wise. We police training that instructors pro- grams leading management routinely universities and institutes warnings practice, likely recommend such as a sound to bolster the voluntariness of consent to search.” III, generally Dery, 685 N.E.2d at 771 n. 6. “When Will End?’’, Stop This (asserting 25 Fla. St. U.L.Rev. at that a Traffic communication, free-to-go admonition "based as it is on overt clarifies individual, allowing encounter for the thus officers to maintain control”). better suggestion flashing lights nearby Strickler's from the unsettling cruiser added to the Indeed, supported effect is not in the record. contrary, arresting to the officer testified to his belief that activated, or, were, emergency lights they only were if the back- illuminated, up lights shining only were to the rear of the vehicle. him, was issued to this directive Strickler to come over asked Freeman, detention, Pa. at stages of the in the initial cf. of intrusion degree A.2d at and entailed lesser from his step to requiring in driver than that involved stressed, Superior Court during stop. a traffic As vehicle involving demonstrative number of other factors there are a from the present are absent authority that exercise of of unusual weapons, no of a show There is evidence case. tone use of or commands, any language behavior or aggressive with the circum not commensurate by the officer that was part Although present a second officer was stances. not an active encounter, was suggests evidence Thus, well overall, arresting operated participant. stop/investigative of a typical the boundaries within detention. advise

Further, expressly not although the officer did leave, his they his were free companion Strickler and much, in that he returned suggested least as actions at documentation, him cooper thanked for his Strickler’s driver’s and ation, prior reinitiating interaction away and turned United to search. See ultimately requesting consent th (10 Cir.l993)(refer 1447, 1451 McKneely, 6 F.3d States historically police-citizen drawn between encing the “clear line an officer returns a which occur before after encounters documentation”). Nevertheless, the absence ... driver’s the form of an admonition endpoint the detention express to leave is an area of by the officer that was free Strickler of the remain concern that carries forward in our assessment relevant circumstances. ing officer, however, nothing following the actual end- did suggest independently that would

point the lawful detention as directives: requests his were to be viewed subsequent States emphasized factors United the “excesses” absent; the officer did jurisprudence remained movements; no evidence or there is touch Strickler direct the officer. We language of coercive tone use officer’s admonition arresting significant also deem required to consent to the search. that he was not Strickler ' 78 advice, Mendenhall,

Regarding such the United States Supreme Court stated follows: is especially significant

[I]t [the defendant] twice expressly told that she was free to decline to consent to the search, only explicitly thereafter it. consented to Al- though the Constitution does not require proof knowledge right of a to refuse as the sine qua non an effective search, consent such knowledge was highly relevant to And, the determination that there had been consent. per- haps important more for present purposes, the that the fact themselves [the that she was defendant] officers informed to withhold her consent substantially lessened the free probability that their conduct could reasonably have ap- peared to her be coercive.

Mendenhall, 558-59, (citation 446 at 100 S.Ct. at 1879 omitted; added); Bostick, emphasis 432, see also 501 U.S. at 111 at S.Ct. 2385 (describing “particularly worth noting” the fact that police specifically advised the defendant that he consent). right Here, had the to refuse coun- admonition terweighs the officer’s failure to expressly advise Strickler that he was free to leave.

In summary, Upper Allen Township officer conducted an investigative detention of a less intrusive nature than is permitted in connection with an ordinary Al- stop. the officer though did not make endpoint to the lawful one, an express detention nonetheless; there was an endpoint moreover, the officer his subsequent confined conduct and conformed requests his a manner consistent -with a consen- sual encounter and expressly right advised Strickler refuse consent. Weighing the above factors in light of Robi- II, nette we request conclude that the to search did not rise to or second subsequent seizure under the Amendment, Fourth and, accordingly, proceed to voluntariness assessment.27 noted, 27. As since we have determined that Strickler not seized at vehicle, granted the time he his consent to the search of his no Fourth Amendment implicated interests are in connection with the officer's However, requests questioning. and since a performed, search was and protects against the Fourth Amendment also unreasonable searches, separate appropriate. voluntariness assessment remains

79 the Common inquiry, In with such connection is the that a consent establishing the burden bears wealth choice—not free unconstrained and essentially of an product a will coercion, or or express implied, result of duress gen See totality of the circumstances. overborne —under noted, at 421. As II, 40, 117 at 519 U.S. S.Ct. erally Robinette to the search to consent right refuse knowledge while account, the Commonwealth taken into factor to be is a as a knowledge prerequisite to demonstrate required Schneckloth, 412 U.S. at voluntary consent. See establishing a 527, A.2d at at 738 227-28, 2041; 558 Pa. Cleckley, at 93 S.Ct. one, objective is an although inquiry Additionally, emotional state mental or maturity, sophistication capacity to (including age, intelligence the defendant generally will), into account. See are to taken free be exercise Mendenhall, 446 U.S. S.Ct. United States Watson, (1980); 423 U.S. States v. United L.Ed.2d (1976). LaFave, See 46 L.Ed.2d 598 S.Ct. 8.2(d), § at 666-73. and Seizure Search consent is that a defendant’s rejected argument also has at a time when the involuntary given where it is necessarily crime. evidence produce will knows the search defendant (finding that the Bostick, at 2388 501 U.S. an innocent person). person presupposes test and for a sei voluntariness both the tests for Since circum objective centrally entail an examination zure to determine surrounding encounter police/citizen stances upon authority impact that would a there was show whether there is substan citizen-subject’s perspective, support tial, analyses. reasons necessary overlap in seized at the time was not the conclusion that Strickler ing therefore also vehicle search he his consent lent his consent of a in favor determination strongly militate supports in a determina the record voluntary. Nothing was or men maturity, sophistication individual that Strickler’s tion Moreover, regard. bearing this should have tal state free to was that Strickler arresting officer’s admonition directly refuse the for request pertinent consent to establish voluntariness Strickler’s consent. Thus, the Commonwealth’s unrebutted evidence was suffi- satisfy cient to its of demonstrating burden both that Strickler subject was not to a for purposes seizure the Fourth Amendment at the time his consent sought given, that his consent was voluntary.

Finally, Amendment, addition to relying upon the Fourth I, passing Strickler makes references to Article Section 8 of Pennsylvania Nonetheless, Constitution. noth- offers ing that distinguish pertinent protections would available Pennsylvania under the Constitution from those un- available der the Fourth Amendment. We therefore decline this case full undertake a review of the factors identified in Common- Edmunds, (1991). wealth 526 Pa. 586 A.2d 887 Signifi- cantly, this in Cleckley lays Court’s recent decision groundwork for alignment Pennsylvania law with Fourth jurisprudence. Cleckley, Amendment See 558 Pa. at A.2d at 433 (endorsing Schneckloth test for voluntariness in the context of a request for consent search during made encounter). II, the course of a mere 519 U.S. at at 421 (relying upon Schneckloth to support totality-of-the-circumstances conclusion that the approach was also appropriate the determination of wheth- effected). er and to Therefore, what extent a seizure has been present for purposes, concerns such as by those identified Robinette, Ohio Court in as that ultimately court concluded, adequately are totality addressed within the assess- ment.28

The order of the Superior Court is affirmed. argument, advancing At oral counsel the lead issue in this and requested judicial several consolidated cases that this Court take notice selective, police employ tactics such as consent searches on a classes, discriminatory against protected basis primarily members of on Pennsylvania highways interstate used as conduits traffickers of illegal drugs. Preliminarily, arguments appear would to be better Clauses, Equal framed under the or Due Protection Process or ad- supervisory powers, dressed our than asserted as a basis determining modified construct for whether seizure has occurred in in the result. ZAPPALA concurs

Justice dissenting opinion. Justice files NIGRO Justice, NIGRO, dissenting. being was dissent, as I that Strickler

I believe respectfully police gave to detention when subjected illegal to search his vehicle. consent case, question is no Strickler

In instant there asked detention when subjected investigative to an to run check registration proceeded and for his license license and returned Striekler’s on the officer them. When warning, longer he no had him a registration and issued (i.e., a activity criminal was afoot suspicion reasonable Nevertheless, the officer stop). to continue the justification Strickler, him had asking whether he proceeded question vehicle, ultimately obtained consent anything illegal view, individual any In my vehicle. to search the to when the go felt free would have position Strickler’s anything he had and asked whether officer turned around Thus, I was indeed in his believe Strickler illegal vehicle. the time that his consent subjected to an detention at illegal was obtained. however, investigative the officer’s finds that majority, in a resulting mere point, ended at some

detention Strickler Strickler when the officer and consensual encounter between I disagree. his vehicle. gave his consent to search Strickler practical I it is unrealistic all believe that Simply put, police a citizen is detained who purposes assume free reasonably go on side of a road would feel night instance, important, As courts voluntariness of consent. the first concerning claims absent pronouncements are such ill-suited to render assertions, evidentiary proven, would counsel’s if record. While full attention, acknowledged, the certainly as counsel merit this Court’s support discriminatory in the record conduct finds no assertion Soto, cases. State v. of the consolidated Cf. (1996)(holding that unrebutted NJ.Super. 360-61 A.2d involving stops African- disproportionate traffic statistical evidence of Equal violating the established selective enforcement American drivers Fourteenth Amendment Due Clauses of the Protection and Process Constitution). States United his way on while the continue ask him questions possible about criminal especially instance, in an activity, that presented case, in the instant where the officer con- ducting stop does not inform expressly the detainee that Robinette, is go.1 33, 47, free to See Ohio v. (1996) (Stevens, J., 136 L.Ed.2d 347 dissenting) (noting approval of the Ohio Supreme practical Court’s observation most reasonable people would not feel free away walk while a police officer who has detained them them). one Thus, reason question another continues to I respectfully dissent.

757 A.2d 908 Pennsylvania, Appellee, COMMONWEALTH of (Two FREEMAN, Cases). Appellant. Diana Ericker Pennsylvania. Court of Argued Nov. 1999. Aug.

Decided mind, my 1. With this agreement I would note proposition with the majority express set forth part admonition of a on detaining subject stop officer to go that he free to constitutes potent, objective supporting factor investigative conclusion that the detention has ceased.

Case Details

Case Name: Commonwealth v. Strickler

Court Name: Supreme Court of Pennsylvania

Date Published: Aug 24, 2000

Citation: 757 A.2d 884

Court Abbreviation: Pa.