Commonwealth v. Wilmington

and concluded “the Settlement plaintiffs was a fair tied with prior verdict has one founded a delicate balancing pro-rata settled for share the ver- interests.” at Findley, F.3d 779. Ab- dict and is not entitled to contribution refuge sent the of limited fund for status any from other strictly defendant found Trust, the Bakers conceivably could liable, a great- whether the verdict is for recovery have received no their for claims. or er lesser than amount the settlement (“... Findley, 878 F.Supp. payment strictly amount. The non-settling liable of some claims at full value the Trust are obligated plaintiffs defendants deplete would the Trust’s assets and would a pro-rata share the verdict and deprive present most and future beneficia- entitled to contribution ries of be their compensated for settling, strictly hable defendants. Trust”). their claims Ball, Walton, 625 A.2d at (quoting ¶ 19 disregard There no reason to J., (Papadakos, concurring)). negotiations hard-fought parties of the reasons, 22 For the foregoing I would Findley, resulting and the balancing court, affirm the learned trial and am con- interests, give effect to a side agree- strained to holding dissent from the ment between two of the parties, especially majority. doing require where so would a remaining party to almost twice pay the share other- ¶ 23 Judge President McEWEN required Pennsyl- wise under TDP and Judge join Dissenting JOYCE vania law. Opinion. ¶ 20 summarize, To I agree with the Ball, trial court: under Walton and Penn

sylvania clearly pro rata state for

purposes liability of set-off in strict cases

such as this one. I find no abuse discre

tion in trial interpretation court’s TDP; amount set-off for the liability

Trust’s share of to the Bakers is a share, $440,000. pro Opinion rata Sur Pennsylvania, COMMONWEALTH of Motions, 4-5.; Post-Trial Trial 1/16/97 Appellee, Memorandum, 9/11/96, at 3-4. Un TDP, der the terms of the and under Ball, Walton and claimants including the WILMINGTON, Appellant. Marcus A. Bakers, be given must deemed to have Superior Pennsylvania. Court of joint Trust a rata pro tortfeasor release regardless of wording of the actual Argued Sept. release. Filed March ¶ 21 Among The Uniform Contribution (UCATA)45 Act Tortfeasors does not com Ball,

pel a different result since under

application required the UCATA is not liability

in strict actions:

As among strictly between and liable

defendants, any defendant who has set- provides pertinent part: 45. The UCATA tortfeasors the amount of the consider- paid ation for the or injured release amount A release of one tortfeasor, proportion by joint pro- which the release whether before or after judgment, vides that the total claim shall discharge does not reduced other greater provides, paid. unless the so than the consideration tortfeasors release against § but reduces the claim 42 Pa.C.S. 8326. other Rosenblum, Stroudsburg, for M.

Robert appellant. Christine, Jr., Atty., Dist.

E. David Asst. Com., appellee. East for Stroudsburg, McEWEN, Judge, President Before SOLE, KELLY, CAVANAUGH, DEL STEVENS, JOYCE, EAKIN, LALLY-GREEN, SCHILLER, and JJ.

McEWEN, Judge. President petition granted 1 This Court by the reargument filed Pennsyl- to consider whether case prohibits the random vania Constitution plaza at a Greyhound toll stopping of offi- permit on a rural interstate “drug interdiction inves- cers conduct in the absence of reasonable sus- tigation” that an cause to believe probable picion transporting individual on the bus is Pa.Super. nar- 561-562 (1996); Trivitt, cotics. Commonwealth v. (1994); Pa.Super. study, 2 Our as well as our resolution Lopez, competing presented concerns 252, 177, (1992), 609 A.2d appeal 181-182 of deadly plague case—eradication denied, (1992). 598, 533 Pa. 617 A.2d 1273 upon society by visited our drugs illicit the preservation of the sacred freedoms

guaranteed by Pennsylvania to us Con- court, 4 The trial when decid guided by stitution —is the admonition of ing a motion to suppress, required to our Supreme Court a hearing findings conduct and make of seriousness of the activity

[t]he criminal fact and conclusions of law determining investigation, under whether it is the whether evidence was obtained in violation drugs sale of or the of commission a of a rights. defendant’s Commonwealth v. crime, violent can justi- never be used as Graham, 472, 475-477, Pa. 554 721 A.2d ignoring fication for or abandoning the 1075, (1998); 1077 v. Commonwealth De rights every constitutional of individual Witt, 299, 302, 1030, 530 Pa. 608 A.2d 1031 in this Commonwealth to be free from (1992); Pa.R.Crim.P. 323. While this intrusions or upon personal her lib- in general, reviewing a sup “[i]n erty absent probable cause. pression ruling by court’s bound those [is] 62, Rodriquez, Commonwealth v. 532 Pa. findings suppression factual court 73, (1992). 1378, 1383 614 A.2d record”, by which are supported Com Sierra, at -, conclude, monwealth v. supra 3 723 We as set forth hereinaf Affir-mance) ter, (Opinion Support A.2d 645 Greyhound bus was seized , the officers when the driver over at since the trial court the instant pulled 1 that, their request and findings solely in the absence case upon based its its re cause, reasonable suspicion probable testimony view of the notes of from the stopping random of a bus to troop allow preliminary hearing conducted on Decem interrogate passengers ers to 26, violates 1996, ber Eyer, before District Justice I, Article Section 8 the Pennsylvania equally “this Court is competent form just surely Constitution as as the random an opinion as the facts from the evi - stopping of automobiles such troopers appearing dence in the record.” Common solely for purpose occu questioning Jones, 423, 431, wealth v. 457 Pa. 322 A.2d of those pants automobiles as to their iden 119, (1974), Males, citing 124 Stanko v. 390 itineraries, tities and would Article violate 281, (1957); Pa. 135 A.2d 392 Poelcher v. I, Pennsylvania Section 8 of the Constitu Poelcher, 3, (1950). 366 Pa. 76 A.2d 222 Sierra, tion. See: Commonwealth v. 555 County Brocker, Accord: Butler v. 455 Pa. pa. 170, 644, -, 723 A.2d 646 343, (1974). 8, 265, 349 n. 314 A.2d 269 n. 8 (Opinion Affirmance); in Support of Com ¶5 11, 1996, On Agent December Ron- Blouse, 167, 169, monwealth v. 531 Pa. 611 ald Paret of the Bureau of Narcotic Inves- 1177, (1992); A.2d Commonwealth v. tigations Attorney the Office Gen- Yashinski, (Pa.Su 1041, 723 A.2d County eral and Monroe Detective Kirk Pacek, per.1998); Commonwealth standing Schwartz were at the toll 578, 466, booths Pa.Super. 691 A.2d 469-470 (1997); Gap located at the Delaware Water Toll Zogby, Commonwealth v. Plaza on (1997), County, Interstate 80 in Monroe 689 A.2d denied, for the appeal purpose randomly stopping 548 Pa. com- (1997); Ziegelmeier, 454 mercial buses proceeding through toll Lewis, 529, 532, 1. Accord: Commonwealth v. Pa. 501, 504, (1994); denied, Com cert. Slaton, monwealth v. L.Ed.2d 297 (1992); Cortez, seizure of only concerning the evidence “drug opera- interdiction plaza part as by the Commonwealth the bus offered tion”. of the December following portion ¶6 on a Appellant passenger was a testimony pro- preliminary hearing Greyhound bus had left New York Paret, sole witness Agent vided Cleveland, Ohio, City en and was route hearing: presented at that Schwartz,

when Detective the bus you approximately do at toll, Q. What did asked driver of stopped pay the Prather, bus, p.m. day 1996]? 4:15 Agent [December Mr. if he and Paret could board the bus and conduct myself, p.m., At 4:15 approximately A. agreed investigation. The driver and was County Detective Kirk along with pull directed to the bus over onto Schwartz, Grey- had occasion to board a apron agents the toll booths. The past hound Bus at time. the obtained and examined tickets bus, Q. boarding what did Upon the Prather, who had been collected Mr. do? you at trial testified that: bus, boarding I Upon A. the made I A. Once had been asked Detective system on the intercom announcement over, I I Schwartz if minded told pulling myself as a of the bus. I identified drug we them have enforcement I also identified Kirk agent. narcotics going get up agents who are to on the county as a detective. We Schwartz they going just bus and are to routine- also wearing jackets were both bus, ly through know, go the I don’t Subsequently, De- identified ourselves. search it or whatever. I don’t know down the aisle tective Schwartz went - they what to I could not tell going into He the bus ahead of me. went specifically hap- them what was to going bathroom, began speaking and I with pen. on bus. passengers the the Q. you How did tell them that? ¶ court, solely upon 8 The based trial the have system A. On P.A. that we on the transcript foregoing review the board the bus. hearing, then made the follow- preliminary Q. you any passengers Did who advise of fact: ing findings want experience didn’t 11, 1996, Agent Ron- 1. On December leave could the bus? Paret, Investigator from a Narcotics ald (N.T. 15) No, I (emphasis A. didn’t. Office, Kirk Attorney the General’s supplied). Detective, Schwartz, County Agent Paret at trial that “... testified drug surveillance interdiction involved bus, my- when I boarded the I identified Bridge Gap at the Water Toll Delaware using system. self address I public Gap, Water Borough in the of Delaware picked up microphone, spoke County, Pennsylvania. Monroe passengers, myself. identified I identified Agent the driver approached Paret Detective Schwartz as other New Bus in route from Greyhound of a I told were on bus with me. them we Cleveland, Ohio, and York identified drug the bus to conduct a brief investi- investigator and narcotics himself as a (N.T. gation 47)(emphasis at that time.” driver if he could board asked the supplied). The driver consented. the bus. 323(h) Pennsylvania 7 Rule bus, officers boarded the 3. When the places of Criminal Procedure Rules passengers to match they attempted well the burden production

burden of as as luggage in overhead carry-on on the Commonwealth. persuasion luggage racks. Hamilton, Pa. if defendant Paret asked the Agent (1996); Common the defendant luggage, and Rundle, he had wealth ex rel. Butler bag on the plastic to a white pointed 239 Agent floor. Paret asked if to stop him where a bus is within the sole could look it. The defendant consent- control the bus driver and not the blue, pair ed. it were a new white passenger, Court conclud- sneakers, and silver Asics any resulting size nine. ed that confinement aof passenger is the natural result of his 5. A Saks Fifth bag, Avenue shopping decision take the bus and not neces- which was located in the overhead rack sarily a result of coercive conduct. directly opposite where the defendant Applying that rationale facts bus, was seated on the was not identified bar, we case conclude that by any of the passengers belonging defendant within was not seized bag unclaimed, them. When meaning the Fourth Amendment. one of the officers held it all up for passengers to see and asked it be- Thus, while trial court found longed anyone. No responded, one that Agent Paret had the bus “detain[ed] including the defendant. on which the defendant a passenger 6. Detective Schwartz the bag removed luggage”, the trial examin[ed] court, from the bus and searched it. The misinterpretation as a result of its a package suspected Bostick, search disclosed holding found that there pair jeans cocaine a of and blue in which had been no the violation of Fourth check, part of a including a Social Secu- Amendment.2 trial The court also found number, rity was found. The cocaine that found in Asics shoe box. The bag warrantless search of the aban shoe box had written on it language doned on the did bus not constitute an nine, that it

indicating once held size unlawful search since the defendant did blue, white and silver sneakers. have reasonable expectation pri of vacy at the time of the search. Abel v. ¶ concluded, 9 The trial court then based States, 217, The United 362 U.S. 80 upon what a misreading we view as 683, (1960); S.Ct. 4 L.Ed.2d 668 Com Bostick, 429, Florida v. 501 U.S. 111 S.Ct. Windell, monwealth v. 365 Pa.Super. 2382, 115 (1991), L.Ed.2d 389 that: 392, 529 [1115](1987).[3] A.2d Bostick, 429, ... Florida v. 501 U.S. ¶ 2382, (1991), 111 S.Ct. 115 L.Ed.2d 389 11 the Contrary to belief the trial court4, the Supreme United States gave Court Supreme United States Court stamp approval Bostick, to such practices Florida v. supra, did not autho- where bus transportation is involved. rize seizures of and occupants their buses that Recognizing the decision when and in the absence of suspicion or Although 2. appellant, raised the trial court Commonwealth than does its federal counter did not Hawkins, address claimed violation Arti- part. See: Commonwealth v. 553 I, Pennsylvania cle Section 8 of the Constitu- 76, 84-86, 265, (1998); Pa. 718 A.2d 269 tion. Matos, 449, 455, Commonwealth v. 543 Pa. 769, (1996); 672 A.2d 772 Commonwealth v. Windell, supra, Commonwealth v. has no White, 56, 45, 896, 543 Pa. 669 A.2d 902 application instant case as it did not conduct, (1995); Smith, 177, v. 532 Commonwealth Pa. any police illegal involve much less 186, 321, (1992); A.2d 615 325 Common conduct, prior to or related Edmunds, 374, 388, wealth 526 v. Pa. 586 Matos, abandonment. See: Commonwealth v. 887, (1991); A.2d 894 Commonwealth v. Mel 449, (1996); 543 Pa. 672 A.2d 769 Common- illi, 412, 405, 1254, Pa. 521 1258 Everett, 430, wealth v. 546 Pa. (1989); Johnston, v. 515 Commonwealth Pa. (1996). 454, 74, 467, (1987); 530 A.2d 80 Common Many thoughtful eloquently reasoned Sell, 63-64, 46, wealth v. opinions Supreme of our Court have estab- (1983); DeJohn, 467 I, provisions lished Article Section A.2d Constitution, predate 8 of our State denied, cert. 444 U.S. Fourth United Amendment States Con- L.Ed.2d 668 stitution, substantially greater liberty bestow privacy rights upon the citizens of this stop bus Rather, Supreme cause. Whether probable those analyzed under by Agent a deci Paret certiorari to review granted Court Court, a deci the constitutional con Supreme discussing Florida opinions sion of the Pennsylvania the Fourth based on purportedly imposed sion straints roadblocks, analyzed United States Constitu Amendment upon Constitution tion, adopted which had se rule per determining the consti under cases those when impermissible “‘an seizure result[s] citi of “interactions” between tutionality dur drug search on buses mount airport government agents zens and stops ing question scheduled boarded stations, railway the deci terminals and for passengers without articulable reasons firmly Court5 estab Supreme sions of our so, doing thereby obtaining consent lish there “seizure” of ” Flori passengers’ luggage.’ search the case, that that seizure instant Bostick, supra, 501 da v. U.S. rights was a constitutional violation State, quoting Bostick S.Ct. of this Com guaranteed the citizens sup (Fla.1989)(emphasis So.2d I, by Article Section 8 of the monwealth plied). Constitution, rendering the Pennsylvania Court 12 The United States subject suppression. seized evidence reversed, only holding per rule se a vehi stop[s] [officer] “When [a] Amendment was inconsistent with Fourth cle for investiga while ex- jurisprudence. Importantly, vehicle, tory and its occu purposes, pressly declining whether a sei- to decide pants, are considered ‘seized’ and this occurred, actually zure had subject to constitutional con seizure noted that S.Ct. Knotts, straints.” Commomvealth determining appropriate inquiry in whether a seizure had occurred violation (citation omitted). Amendment was “whether of Fourth Bowersox, v. 450 Pa.Su Commonwealth to de- reasonable would feel free (1996). 176, 718, 675 A.2d 720-721 per. requests cline the officers’ or otherwise 715 Riley, Accord: v. A.2d Commonwealth 436, terminate the encounter.” 501 U.S. 1131, 1135(Pa.Super.1998). Thus, 111 S.Ct. 2382. Bostick does has 14 Court defined the Supreme Our can- proposition stand for the that seizures of purposes analyzing term “seizure” not occur within the confines of a I, 8, Section much challenge under Article given agent per- the driver has an where differently the United States Su than Rath- mission to commandeer the vehicle. pur “seizure” for preme Court has defined er, for the well-settled Bostick stands analysis. Amendment poses of Fourth that, proposition determining in whether Hawkins, v. 553 Pa. See: Commonwealth of a purposes seizure has occurred for 76, Supreme Our A.2d 265 analysis 718 Fourth Amendment under federal Court, by an the eminent Jus law, opinion attendant all of the circumstances J. v. Ralph Cappy6 tice Commonwealth the encounter must be examined. Court, “jus theory cognizant Superior of of 8 the Court’s Our its sacred Section 5. detention”); trust, v. rejected attempts by Commonwealth Lo repeatedly override, this tifiable vette, has 665, 975, 676, 450 A.2d 980 war 498 Pa. in the name Court to denied, 1178, (1982), crime, 459 103 S.Ct. guaranteed cert. U.S. against rights privacy 830, (1983)(Supreme L.Ed.2d 1025 Court 74 Arti- of this Commonwealth citizens theory I, See, rejects "investigative purposes” v. e.g.: Commonwealth cle Section Commonwealth, 265, noting Hawkins, 76, 84-86, instant fac "[t]he 718 A.2d 553 Pa. uncer (1998)(“The also illustrative of the tual situation is expanded polestar of the 8, I, any attempt expand attendant tainties Article Section protections afforded the wisdom Terryexception and reinforces distinguishes its federal coun- it from adhering scope scrupulously to the narrow privacy emphasis upon personal terpart, interests.”); is exception.”) of the Rodriquez, su- Commonwealth 71, (Supreme Court at 1382 pra at J., I, Castille, Only dissented. rejected under Article as unconstitutional Matos, 543 Pa. 672 A.2d 769 (1996), ^[*] * * * addressed, cases, in three consolidated ... law this has contraband, issue of whether discarded always a.strong preference maintained officer, an individual fleeing from a police for the rights of the individual illegal was the fruit of an “seizure” where Through face coercive state action. possessed officer neither probable our decisions in Commonwealth v. suspicion cause nor stop reasonable Hicks, (1969), 434 Pa. individual. The acknowledged Jeffries, Commonwealth v. 454 Pa. there had been no seizure under a Fourth (1973), 311 A.2d 914 analysis, Amendment citing California Jones, (1977), D., Hodari denied, [cert. U.S. S.Ct. (1991), 113 L.Ed.2d 690 but held that: (1978)], L.Ed.2d and Common ... this traditionally regard- Court has Barnett, wealth v. I, ed Article Section 8 dif- providing Court, both in coordina ferent, broader, protections than its tion independent federal counterpart. federal courts, has set forth the standards to be Edmunds, In thoroughly this Court ex- applied determining whether an indi I, history amined the of Article Section vidual seized and whether the seizure pro- and noted that this constitutional lawful; lawful, and if it is not whether prior origin vision had its the Fourth any evidence must sup obtained Amendment, in Original Clause 10 of the pressed. Constitution of 1776. The Court also Jones, ... adopted this Court recognized that the modern version objective determining standard for what I, Article Section un- remained amount of force constitutes the initiation years, touched for over 200 and exam- Terry of a stop: “whether ined this significance: crime, [person] innocent would survival of the language [T]he now thought being have he was restrained I, employed in Article Section 8 been in the defendant’s shoes.” years through profound over 200 474 Pa. at A.2d at 840. This change in other areas demonstrates case, preceded the United States paramount that the priva- concern for Supreme Court’s decision in United cy adopted part first organic as of our Mendenhall, 544, v. States 446 U.S. 100 law in enjoy 1776 continues to 1870, (1980), S.Ct. 64 L.Ed.2d 497 was a people mandate of the this Com- ” precursor so-called “Mendenhall monwealth. posited by test United Su- States

[*] ^{[*] [*] [*]} preme Court: “a person has been meaning ‘seized’ within the ... this Court “[A]s has stated re- if, only Fourth Amendment in view all I, peatedly interpreting in Article Sec- surrounding circumstances the inci- 8, tion provision embody meant to dent, a would have strong privacy, carefully notion of believed he was not free to leave.” 446 safeguarded in this Commonwealth for 555, 1877, at at U.S. 100 S.Ct. 64 past two centuries.” Id. The Court L.Ed.2d then the purpose concluded that of the The standard rule in Jones/Mendenhall exclusionary developed as Penn- consistently since been followed in Penn sylvania solely deter police sylvania determining in whether the con conduct, Supreme as the United States it, duct amounts to a seizure interpreted Court had but rather was “unshakably simply or whether there is mere en priva- linked cy offi in this Commonwealth.” 526 Pa. at counter between citizen and 397, See, e.g., 586 A.2d at [emphasis 898 cer. Commonwealth v. Lo added]. adopt 665, we decline vette, Accordingly, 450 A.2d 975 Pa. or the denied, Court Superior S.Ct.

cert. rationale (1983); 74 L.Ed.2d Common the Common- offered arguments Hall, wealth v. thus, wealth, expand we decline to Brown, (1977); v. Commonwealth “reasonable narrow appropriate (1989); Pa.Super. 565 A.2d 177 cause probable exception suspicion” Pa.Su Bulling, v. Commonwealth by the United already established (1984). per. 480 A.2d 254 Common Terry in v. Supreme States Carroll, 1, 628 wealth v. this Court Common- Ohio J., (1993)(Johnson, dissenting). A.2d 398 Hicks, Pa. v. wealth Lewis, v. See also Commonwealth (1994).... Pa. As we 614 A.2d at 1383. suspi- the reasonable expand declined to * * * * contrary exception Rodriquez cion Thus, precedent there exists clear I, afforded Article protections Pennsylvania defining appropriate Court decline so too does this Section considering be used when standards to long-recognized definition to narrow has been seized.

whether an individual D. by adopting the Hodari of seizure definition of what long-standing definition. by the applied constitutes a seizure Thus, poli- there are ample we find that cannot be Courts of this Commonwealth the decision of the cy to'reject reasons when viewed ignored, particularly Court in Hodari United States recognition tandem with this Court’s the consti- inconsistent with being D. as I, rights embodied in Article privacy Arti- afforded under protections tutional Section 8. I, Pennsylvania 8 of the cle Section * * ^{[*] [*]} Constitution. As aptly put by Justices Marshall, carried to its “[i]f Stevens Court, in years ago, than three Less conclusion, encourage it un- logical will re- Rodriquez, swpra, Commonwealth fright- displays of force will lawful jected goal the contention surrendering citizens into en countless drug permits trade curtailing may rights they still privacy whatever expansion intrusion without 646-647, justification of reasonable U.S. at constitutional have.” 499 (Stevens, J., suspicion probable cause: at 710 113 L.Ed.2d reject Superior dissenting). emphatically We anal- justifies Court’s “end the means” Matos, at 453- supra

ysis. only its attention By focusing (footnote omit- at 772-776 upon inflicted upon the serious ills ted). narcotics, the society by illegal Superi- Court, in Our Common- and re- recognize or Court failed to 545, 668 A.2d Whitmyer, 542 Pa. wealth v. con- necessary constitutional spond (1995), the prohibition reiterated on excessive conduct. straints of vehicles on stopping the random against activity of criminal The seriousness Commonwealth: highways of this it is the investigation, under whether Swanger, v. In Commonwealth of a drugs or the commission sale (1973), ad- this Court 307 A.2d 875 crime, never be used as violent can the issue whether dressed or abandon- justification ignoring for of an auto- stop could the driver officer every ing the constitutional observed that having without mobile to be in this Commonwealth individual provisions violate driver her upon intrusions his or free from acknowl- We first Code. Vehicle liberty probable absent personal stopping of a vehicle that the edged cause.

the detainment of its passengers consti- wealth Swanger, v. 453 Pa. at tutes a seizure and therefore implicates A.2d at 878.

the Fourth Amendment ... held [and] Whitmyer, supra Commonwealth v. that “before government may single 547-553, 668 A.2d at 1115-1117. See also: out one automobile stop, there must DeWitt, supra Commonwealth v. at 306- specific be justifying facts this intrusion. 1034; 608 A.2d at To hold otherwise give would be to Scavello, (Pa.Super.1997), absolute, unreviewable discretion (October 30, 1998), appeal granted authority to intrude into an individ- ual’s life for no cause whatsoever.” Id. Court, 16 Recently, this in Common Yashinski, wealth v. supra, 723 A.2d at * * * * 1042-1043, concluded that the defendant seized, This Court I, [in Commonwealth v. Mur- had been in violation of Article (1975)] ray, 460 Pa. Section when: reversed the defendant’s conviction on ... Trooper partner sys- Gibson and his the basis that the evidence obtained tematically engaged the drivers entering from the search of the vehicle should turnpike conversation. This brief have been suppressed because “the encounter, at least the case of our power Commonwealth’s to regulate ve- appellant, presumably most, hicular traffic within its borders not did all, of the other drivers entering the supply justification an adequate for the turnpike, provided Trooper sufficient upon intrusion privacy occasioned enough contact with the appellant stop.” Id. at 331 A.2d at 417. In so presumptively determine he might holding, we reaffirmed the rule set forth operating the vehicle under the influ- Swanger: ence of alcohol. The may lower court If the alleged basis of a vehicular stop have been inclined to believe the rather permit is to a determination whether incredulous explanation Trooper Gib- there has been compliance with the that, son in systematically engaging Motor Vehicle Code of this Common- conversation, drivers in part- he and his wealth, it upon is incumbent the offi- ner performing “public relations” cer to articulate specific pos- facts Pennsylvania activities State Po- him, sessed the time of the lice as opposed seeking drunk drivers. questioned stop, which provide would Nevertheless, in our opinion such a probable cause to believe that the ve- course of conduct describes a de facto hicle or the driver was in violation of roadblock regardless of intent. some provision of the Code. A “roadblock” has been characterized as 58-59, Id. at 331 A.2d at (citing 416-17 “systematic program checking vehi- Swanger, 6308(b). § cles or drivers.” 75 Pa.C.S. (1973))(footnote Further, omitted). Court, our Supreme . in discuss-

ing the case of United States Mar- * * * * tinez-Fuerte, 96 S.Ct. 3074 [49 L.Ed.2d used the fol- 1116] previously When faced with these two lowing language to describe conduct interests, competing we held “that a which was considered a roadblock in stop single a vehicle is unreasonable case, that the “routine stopping a where sign there is no outward the vehi- vehicle for brief questioning of its occu- operator cle or the in are violation of ” pants Tarbert, .... Vehicle Code.... [B]efore 277, 287, government may single out one automo- stop, bile to there must be specific Regardless facts intent and/or justifying this intrusion.” Common- presence suspicion, or the nette, thereof, U.S. precisely this is what lack

Trooper engaged (1996)(Dissenting Gibson was in. 347] L.Ed.2d [136 earlier, observations demon Opinion). Gibson testified These As mentioned a ticket appellant stopped that as take not offi that a officer need strate doing, asked him he was he “how a effectuate the cially “stop” vehicle to you from.” Gibson coming where are if enough it investigative purpose, appellant further indicated that wasn’t be question a a motorist ask only engaged in this individual cause, of motor except for the brashest fashion, speak rather Gibson stated “I ists, com ordinary motorist will feel through.” just everyone goes about that stop respond. pelled to such, partner As Gibson and were Yashinski, supra a engaged process of the “routine stopping question- of a vehicle for brief ¶ 17 Supreme While the United States occupants.” The Common- ing a plurality decision United court quick wealth and lower Mendenhall, States U.S. out that Gibson never or- point Trooper (1980), S.Ct. 64 L.Ed.2d conclud- and never indi- appellant stop dered ed an encounter a citizen and that between cated that he was not free to leave. airport However, agent a DEA in an terminal opinion this in our is immate- not detention investigatory rial. constituted an law, under the Court noted that federal The definition of roadblock does not walking upon encounters between officers systematic that the checking state must air, done public under threat force or some streets or in the concourses of compulsion. To other form of the extent inherently rail and bus terminals are dif- the questioning of drivers coming govern- ferent encounters between through effectively provid- the tollbooths stop ment initiated of a agents brief most ed contact with of them it passengers: vehicle and its Fur- purpose. would serve same involving The Court’s decisions investi- ther, argument reality ignores do not gatory stops point of automobiles circumstances. The overwhelm- any different direction. United lay ing majority of not people do feel Brignoni-Ponce, 422 States v. U.S. to simply ignore free officer’s 607], 45 L.Ed.2d [95 S.Ct. questions along. and continue driving roving patrol Court held that a of law recognized a concept We similar in Com- stop enforcement officers could motor- Zogby, monwealth v. [455 621] general an ists in the area of interna- where we stated inquiry tional brief into their border for reality of the matter that when “[t]he only if residence status the officers rea- requests officer civilian do vehicle sonably suspected might something, something simple even as illegally aliens were in the contain who along,’ ‘move it is most often perceived 2574], Id., country. at 881-882 S.Ct. [95 aas command that will be met with an not in that The Government did contend Id., unpleasant response disobeyed.” persons case whose automobiles 689 A.2d at 282. Indeed, detained were seized. less authority No an than Justice Ste acknowledged Government vens of the United States of a detained vehicle were occupants “[r]epeated Court has stated decisions required ques- to the officers’ respond by ordinary citizens to surrender to produce and on some occasions tions interest to refuse consent to a [the evidencing eligibility to their documents satisfactorily ex cannot be search] Id., States. at 880 [95 be in the United hypothesis than plained other Moreover, stopping or di- 2574]. S.Ct. assumption they they believed had that transit, verting do v. Robi an automobile legal duty so.” Ohio

1170 opportunity vehicles,

the attendant for a visual stopping the random as the inspection passenger areas the stop was we consensual. While refuse to compartment not otherwise observa- find that Mr. provide Prather could a valid ble, materially more intrusive than a consent for the unconstitutional seizure of question put passing pedestrian, bus, on his the seizure in passenger and the fact that former amounts pass this case cannot constitutional muster to a seizure very tells little about the only even when we examine—in isolation— constitutional status of the latter. See Paret Agent interaction between Prouse, also Delaware v. 440 U.S. 648 appellant after the seizure of bus had 1391, 660]; S.Ct. [99 59 L.Ed.2d United by to an completed been its removal area Martinez-Fuerte, v. States 428 U.S. at alongside plaza. the toll 3074], 556-559 S.Ct. [96 ¶ 19 Superintendent of the Dela- Tilwick Mendenhall, United States v. 446 supra, ware River Bridge Toll Commission testi- 556-557, U.S. at 100 S.Ct. (emphasis 1870 no fied trial that one leave the could added). and walk or hitchhike from the area where by agents, 18 it been directed colleagues Our esteemed since the- pedestrians prohibited dissent and court are Route 80.8 upon the learned trial grounds usually urged upon reason that the Thus the cooperation of Mr. Prath er, driver, the bus by obviates the need to Court in support Commonwealth analyze seizure, ie., stop of bus under the its claim that there was no body substantial of case law7 prohibiting suspect that was free to decline to Supreme 7. The United The States Court in United Fourth and Fourteenth Amendments' 873, prohibition Brignoni-Ponce, v. States 422 95 of searches and seizures that U.S. by objective justifi- are supported 45 some S.Ct. L.Ed.2d 607 held that a governs person, cation all seizures roving patrol of law enforcement officers "including only that seizures involve brief stop general could not motorists area of detention short traditional arrest. Davis inquiry an international for border brief into Mississippi, v. [89 394 U.S. 721 S.Ct. their if residence status the officers did not (1969); Ohio, Terry 22 v. 676] L.Ed.2d 392 reasonable, suspicion have a articulable that U.S. 20 [88 16-19 S.Ct. L.Ed.2d might the vehicle who were contain aliens (1968).” Brignoni- United States v. 889] illegally country. in the The Court held: "it Ponce, 873, 878, 422 U.S. S.Ct. 95 45 is not 'reasonable' under the Amend- Fourth (1975). L.Ed.2d the Court 607 While stops ment to make such on a random ba- recognized some circumstances a For sis.... reasons Fourth same that the person briefly, may be detained without stopping Amendment forbids at ran- vehicles him, any probable cause arrest curtail- inquire they carrying dom to are aliens who person’s liberty ment of a illegally country, in the it also forbids supported must be at least stopping persons detaining questioning suspicion articulable citizenship about their on less than a reason- activity. engaged seized criminal See suspicion they may able 422 be aliens.” Texas, 47, 51, Brown v. 443 U.S. 99 S.Ct. 883-884, Similarly, U.S. at S.Ct. 95 (1979); 61 L.Ed.2d 357 Delaware v. Georgia, Reid Court in v. 448 Prouse, 648, 661, S.Ct. U.S. 100 S.Ct. 65 L.Ed.2d (1979); Brig- L.Ed.2d noni-Ponce, States v. United (1980), reversed the conviction of an airline Williams, supra; Adams v. passenger agent where the asked two men 143, 146-149, U.S. S.Ct. airport outside the "if would terminal Ohio, (1972); Terry supra. L.Ed.2d 612 v. agree return to the terminal and to consent Georgia, Reid v. 448 U.S. at persons to a search of their and their shoulder (emphasis supplied). bags. agent petitioner The testified affirmatively, nodded his head and that the may provide explanation This for the 'Yeah, responded, okay.’ other As the three prac- Paret from former move officer however, terminal, of them entered the boarding during stops tice buses scheduled petitioner began Holt, to run and before layovers. v. Commonwealth apprehended, bag. (Pa.Super.1998); abandoned shoulder Commonwealth recovered, bag, Vasquez, The when was found to con- (Pa.Super.1997); 703 A.2d 25 Georgia, supra. Wright, tain cocaine.” Reid v. Reid Court held: public in a the defendant tory stop of is not available away9, or to walk answer terminal, this Court reminded and railway any finding oth precludes in this case and that: by means of than that “officer [Paret] er sacred, more or is is held right ... “No authority, has ... restrained ... show of the common carefully guarded, by more that we liberty [appellant] requiring law, every individual than the a ‘seizure’ has occurred”. conclude that of his own and control possession Bostick, 434, U.S. at 111 S.Ct. 2382. or inter all restraint free from person, Matos, supra v. also: See Commonwealth others, and by unless clear ference 769, 672 A.2d at 774. at Terry law.” authority of unquestionable Moreover, light of the announcements Ohio, at supra, 392 U.S. at 88 S.Ct. v. and the driver after by agent made v. Bots Pac. R. Co. citing Union man, over, no “reasonable pulling the bus ford, U.S. crime, thought would have innocent (1891). The Fourth 35 L.Ed. 734 restrained.” Common being he was of searches prohibition [not] Amendment’s Jones, by unsupported that are supra A.2d at and seizures wealth all sei objective justification governs McKethan, 840, quoting United States v. including seizures person, zures of (D.D.C.1965)(footnote F.Supp. only a brief detention. that involve omitted). Lewis, 507, 636 supra Stephen 20 The venerable Justice A. The Lewis Court analyzed A.2d at 622. majority10 Zappala, writing Supreme States the decision of United Lewis, supra, Commonwealth v. specifical- found, in Bostick and under ly rejected prior circumstances, this Court’s determina- the en- totality railway station11 between in the investiga- tion that there had not been an counter colleague, Judge finding that there was no reasonable John G. with the 9. As our learned justify investigatory stop. astutely Brosky, suspicion reiterated: ... it must be remembered that a agent advised an ticket had 11.An Amtrak authority figure that an officer is men, police officer that two black Amtrak authority commonly reinforced officer’s previ- fitting drug profile, courier who had encountering 'suspect.' when stance, For in- trip tickets to New ously purchased round stopped suspi- if a driver is under cash, again purchased tickets York with simple the driver cion of a traffic violation money ... no and ‘‘had a bundle of may be asked for a driver’s license and luggage.” the men as The officers observed registration, may step be asked to out of they decided to meet awaited their train and pos- requests the vehicle. These are not approach on its return and to the train suggest way one tured in such a as to men at that time: given comply or not. As a real choice returned, they Appellants When the Ohio, Court of stated - officers Officer Ciu- confronted four validly people believe that '[m]ost Crandall, partner, pinski and his Officer custody long in a officer's as the partner. Detec- and his Detective Holland interrogate them. The officer continues to Ciupinski and Detec- tive Arnold. Officer upper officer retains the hand and Their side. tive Holland stood side authority. the accouterments of That the act as partners followed behind them to legal to continue to officer lacks license in uni- backup. of the officers were None citizens, detain them is unknown to most identified themselves form. The officers would not feel free a reasonable they were appellants and informed away as the officer continues walk doing an interdic- “working narcotics and Robinette, Ohio address him.’ State v. bring- checking for couriers program tion (1995). St.3d 653 N.E.2d ing drugs from New York.” back grounds, Reversed on federal constitutional Appellants asked whether the The officers Robinette, S.Ct. Ohio v. Ap- speaking with them. would mind 417, 136 L.Ed.2d 347 away four and the pellants then backed supra, Zogby, They to back continued officers followed. omitted). (footnote they were away ten feet until for five to in front. up to a wall with benches Papadakos backed 10. Justices Montemuro up standing backed They until majority remained agreed with the conclusion occurred, disagreed benches. but that a seizure had and Lewis the officers had constituted an free to person ig- would feel investigatory stop not a and mere encoun- nore his busi- police go and about ter: ness. Encounters of that nature are Bostick,

In Florida v. suspicion consensual and no reasonable (1991), S.Ct. 115 L.Ed.2d 389 The re- required. expressly Court Court addressed the issue whether fused seizure to decide whether or not a permits Fourth police Amendment offi- Bostick had occurred because trial to approach cers individuals on a bus to findings court had made no express them questions ask and to request con- fact Supreme and the Florida Court’s sent to luggage. search their part As entirely decision rested on the fact drug a program, interdiction the Sher- place encounter took on a bus. The Department iffs of Broward County, Court remanded the matter for further Florida, routinely boarded buses at opinion. consistent proceedings with its stops scheduled and asked passengers The Supreme U.S. Court articulated the permission to search their luggage. following a test determine whether Two officers a boarded bus from bound particular encounter constitutes a sei- during stopover Miami to Atlanta a zure: must all court consider “[A] Fort Lauderdale. The singled officers surrounding circumstances the encoun- Bostick, out concededly Terrance with- ter to determine whether police con- out suspicion, articulable and asked duct would have communicated to rea- inspect his ticket and identification. person person sonable that the was not The ticket matched Bostick’s identifica- free to decline the or request officers’ tion. The officers then conducted otherwise terminate the encounter.” search of his suitcase and uncovered co- 501 U.S. at Ap- at 2389. dispute caine. There was a as to wheth- plying the test the facts of the instant er Bostick consented the search. case, totality we that under find Bostick was arrested and charged with circumstances, the police conduct trafficking in cocaine. would have reason- communicated to a The trial court denied his suppression person able that the was not free motion. The Florida District Court of to leave. not our single It is intention to Appeal affirmed certified the ques- out the fact that Appellants tion to the Supreme Florida Court. The police confronted four as dis- officers Supreme Florida Court held that an im- positive inquiry, of our but the nature of permissible police seizure occurs when confrontation demonstrated show drug initiate a during search buses authority constituted a re- stops question scheduled passen- straint Appellants’ liberty. We gers without articulable reasons for do- hold that a seizure occurred in this case. ing so. Supreme The U.S. grant- Court Lewis, at 508- supra ed certiorari to determine whether the added). 623 (emphasis Supreme per Florida Court’s se rule was ¶ 21 A majority this Court en banc in consistent with its Fourth Amendment Hoak, Commonwealth v. jurisprudence. (Pa.Super.1997), appeal granted, 555 Pa. The U.S. Court Supreme held that the held that: Florida Court erred in adopt- Commonwealth, ... pedestrians ing per every se rule that en- protected by motorists alike are counter on a is a seizure. The same into inquiry held constitutions. that a seizure does not occur whether simply particular encounter consti- ap- because a officer for the tutes a seizure must consider all the proaches purpose individual asking a so questions long surrounding few as a circumstances to determine Lewis, 504-508, supra 636 A.2d at 621-622. Lopez, have com- seizure. police conduct would whether 182. The resulted illegality A.2d at persons

municated to reasonable Lopez’s the offi- the officer’s retention of not free to decline they were while terminate other because request papers cer’s otherwise license license, to en- inquiry applies encounter. This plainly Lopez held place city leave; that take a street indeed, counters not he could not free bus, airport lobby along in an or a legally. do so following stop.

road traffic See Bos- tick, 439-40, * * * * 501 U.S. at 111 S.Ct. at (whether aboard a bus questioning the traffic paperwork during While requires constitutes a seizure a consider- and been Lopez in Guzman had stops ation of all circumstances surround- concluded, neither free to individual was encounter); II, 519 ing the Robinette leave, objective including facts given (whether 38-40, U.S. at S.Ct. at registra- retention of license and police to search seizure during consent a lawful he tion. Neither individual was advised question valid is of fact to be deter- free to leave. Neither individual’s was circumstances). from all the mined transformed police encounter Hoak, v. 700 A.2d supra, Commonwealth (initiated by nonconsensual their majority at 1268. The held that Hoak driving) Clearly, illegal consensual. Hoak, had been free to who told he was just distin- Lopez and Guzman longer leave after a traffic was no stop, case, they from the guishable instant purposes “seized” for of Fourth Amend agree two factors are tell- emphasize we ment jurisprudence papers since his documents, necessary retention of ing: him been returned to and he had been indicating of a absence statement prior informed that was free to leave they were free to leave. request. the officer’s Hoak, v. 700 A.2d supra, Commonwealth ... court has can This held [motorists] 1267, 1269, origi- (emphasis their not consent while officer holds omitted). nal)(footnote Lopez, identification. Commonwealth v. case, closely equally 22 In related Pa.Super. alloc. Supreme Court in divided Commonwealth denied, 533 Pa. A.2d 1273 Sierra, supra, suppression affirmed the v. (1992). Appellant asks us to hold now pursuant seized to a consent evidence consent they cannot after their identifi after had been given driver search they cation is returned and are told and all given warning of his documenta- go.... are free to had been returned. tion

[*] ^{[*] [*] [*]} ¶23 Court had granted three issues: in Sierra examine allocatur indicates, Lopez ... As the discussion in “(1) Officer Roehm’s continued whether per- whether return or retain regarding of the driver questioning license, registration pa- or other son’s ear an investi constituted contents resolving critical to pers properly (2) detention; so, whether gative herein. issue raised justified; if there detention validly stopped Lopez Lopez, police In detention, the driv whether illegal was an re for a traffic violation. Without vehi consent to search the subsequent er’s registration, his rental car turning appellee pat-down search cle and license, continued agreement illegal detention.” tainted Lopez origin, question regarding Sierra, at -, supra destination, duration of his purpose and in his Nigro A.2d. at 645-646. Justice asked his consent to trip, and then Affirmance, held: Support Opinion found this panel A this court search. when investigative detention occurs investigation” An detention and “continued an in- temporarily detains officer Amendment Fourth an unreasonable dividual means of physical force or a depart could once the officer returned of authority show for investigative the driver’s pur- documentation and issued poses. Lopez, warning.... Commonwealth v. Sierra, at -, supra denied, appeal 617 A.2d 723 A.2d at 646. (1992). See also Commonwealth v. ¶ 24 light of the Supreme Court’s

Lewis, (1994). Sierra, of, Opinions well, Such a detention constitutes a seizure of unanimous en banc view of this Court in a person and thus activates the protec- Hoak that a valid consent to search cannot tions of the Fourth Amendment and the be supplied by a who motorist has not requirements Ohio, Terry 392 U.S. been told he may leave and whose docu- 20 L.Ed.2d 889 ments have not by been returned the offi- Lopez, 258-59, Pa.Super. 415 at 609 A.2d cer, it reasonably cannot be argued that a 180; Lewis, 507-08, at 535 Pa. at 636 bus, passenger on a seized while en route A.2d at 622-23. In order to determine on an highway interstate pedestrian where whether a particular encounter consti- prohibited, traffic is who has in- been seizure/detention, tutes a “a court must (as by formed the driver of the bus consider all the circumstances surround- leaves bus to the sole control of the ing the encounter to determine whether agents) that the bus has been temporarily the police conduct would have communi- placed at the disposal of “drug enforce- cated to a reasonable the ment agents who are to going get up on person was not free to decline the offi- the bus they going just and are routine- cers’ request or otherwise terminate the ly go through the ... search it or Lewis, encounter.” 535 Pa. at 636 whatever”, reasonably could believe he was Bostick, A.2d at 623 (quoting v. Florida free to agent’s decline the demands for his ticket, identification, 115 itinerary, lug- and (1991)). L.Ed.2d 389 gage. case, In the present the Commonwealth ¶ 25 The requirement constitutional argues that the officer’s questioning can- of a reasonable articulable suspicion to not be characterized as an “ investigative support an investigative seizure ‘protects detention because Officer Roehm had - right a precious easily hard earned and returned the regis- driver’s license and - lost arbitrary be free of police intru tration and had issued a warning for privacy sions on individual and free move speeding prior to asking any questions Bennett, ment.’” Commonwealth v. 412 driver, of the because there was no show (1992), physical force or authority over the quoting Gooding, United States v. driver, and because the question asked (4th Cir.1982). F.2d 83-84 In the ab by Officer Roehm was not a request to sence of such suspicion, search the vehicle. seizure in the instant case was a violation Given the surrounding circumstances Pennsylvania of the Constitution requiring encounter, we cannot agree that the suppression of all evidence seized as a occupants should have known that result thereof.12

12. One hope can but appellate cooperate, you that further you and are free leave. If review of the issues appeal raised this will comply choose not to leave and to our adoption insightful effect the proposal requests, anything through revealed those Nigro Justice Russell M. officers may you inquires against legal be used required to advise travelers as follows: Furthermore, proceedings. you agree outset, cooperate you may at the We still refuse investigating drug officers further; any cooperate you may trafficking. approached you time to pure- We on a ly inquiry you you random basis end the and leave. Do would like to ask under- questions. legal right you obligation some You have a stand are under no requests, decline our comply requests to refuse to with our at this time? ¶ ¶ errs faetual- majority I Judgment vacated. believe sentence analy- of its relinquished. ly14 Case remanded. Jurisdiction outset legally sis, stop not a this a It is by calling stop. ¶ J., EAKIN, A FILES terms, an en- seizure but search OPINION, DISSENTING BY JOINED to be encounter planned It was counter. JOYCE, J., LALLY-GREEN, AND J. rest, sure, already but the bus own, approached time agent at the STEVENS, J., FILES A it stop not agent The did driver. OPINION, BY DISSENTING JOINED such as driver. Cases approaching EAKIN, J., LALLY-GREEN, AND J. Swanger, Pa. Commonwealth J., EAKIN, dissenting: ¶ 1 majority provides compila- a fíne Whitmyer, Pa. tion of Fourth Amendment caselaw and length majority, are cited at of overzealous dangers government of a vehicle applicable approach however, I cannot fact in agents; find intervention. already at rest without record suppression which constitutes request illegality There is no in the such, act. I am unconstitutional As - cooperation an officer for the driver’s dissent, compelled to well the joining as ask, always lawfully position in to may thoughtful Judge of No dissent Stevens. do if the under coer- Only request so. is

matter one the notion how distasteful finds which volun- preclude cive circumstances techniques,13 of agent interdiction if this will the be constitu- tary request consent nothing improper, did there no basis for not tionally agent invalid.15 The did ask suppression the deci- overturning court’s point, at this sion. for the driver’s documents Boswell, County. proper The constitutional Commonwealth of Monroe conduct, (1998)(Opinion police n. 344 n. 1 in analysis examines not circum- Reversal). Support by appellant's of Such a statement of trans- created choice stances should, course, be read to only possibly of from a card so as portation. The he could reason credibility police enhance the of trip the transit his continue in- have to think wouldn’t cocaine, that full the statement recited to the potential discovery the the of volved likely urge accused. The transit will not the location bus. imposition requirement of such a will impede inhibit their effort and their march. reviewing suppres the denial of a 14. When echoes, course, This pre- assertion of the dire motion, we must determine whether the sion enforcement dictions of law authorities when supports suppression the court’s factu record warnings requirement, the Miranda became a does, may findings, if it al we reverse today dispute but few would our Consti- legal v. Ab only error. by tutions have been well served those warn- dul-Salaam, ings. requirement It merits mention that the denied, cert. S.Ct. of such a statement the transit (1997). While I 137 L.Ed.2d 496 do simply prevent would not of our the erosion suggest to a certain result not a desire reach would, well, individual liberties but as dimin- record, majori suppression the no matter increasing inventory suppres- ish the ever ty specifically apply declines this standard to system. judicial sion which burden our cases court, suppression the facts found to Nor do we what address some characterize testimony and the cites from trial facts then distressing inclination of the transit analysis support to other cases its depict jolly to bus a holi- such encounters as entirely suppression issues. what are day reshape Mary Poppins, with and even their of events the encounter recollection Lopez,415 15. See suppression so as thwart the effort. to majority A.2d 177 also in Common suggests our en banc decision vantage point majority to 13.This causes the Hoak, (Pa.Su wealth v. herrings. emphasize For constitutional red 1997) search can holds a valid consent to per. example, majority practical stresses the supplied who has not motorist not appellant’s ability "walk to restraints away.” may documents he leave and whose been told illusory; question is if he was This this is an returned. I believe not been away, he have not walk it was because able to - reading holds that if driving of Hoak. Hoak Greyhound incorrect leave the to decided to him, are returned and the individu put documents quite volun- that’s the choice - leave, may tarily, he there is no coercion of a in al is told in the confines the "wilds" any nor did he suggest penalty illegality point for declin- 6 I can to find no ing cooperation. Inside, Company policy gave the the bus. police entered driver discretion to cooperation, decline searches two bags. conducted relevant which means he knew he didn’t have to floor; appellant The first was on the ac- agree. The driver did agree, unless his, knowledged it was and consented to we hold an agent’s identity per se coer- contents, revealing pair its of sneakers. cive, agreement his involuntary. was not As lawfully position the officer was in a ask, and the was not based on cooperation ¶ 4 There is no excep- “common carrier” beyond articulable coercion offi- considerations, tion consent nor is there occupation, cer’s find no impropriety I logic for one. The same constitutional law vehicles; search. applies all the driver of a bus has the same rights constitutional as the bag 117 The was in luggage second car, more, driver no no less. Like- owner, rack. agent When asked for wise, bus, passengers having sur- owner, no one it. no acknowledged With rendered to the driver the decision of possession? did appellant have Where is take, which route to whether to stop, go, the illegality bag searching a no up down, or speed slow pay toll driver, At owner? point control booth, through drive the same contents, certainly the bus and its position as passengers of a car. If the else, possession equal anyone agrees driver stop, the passengers can- consented to its search. complain rights their If are violated. juncture, appellant 8 At this was be- the driver along, allows the officer to ride place, tween a rock and hard but that passengers cannot complain. If the position was not result of police illegal- driver consents to a of a search vehicle in ity dilemma result know- —his possession, the passengers cannot com- ing bag. the contents the of second He

plain until the search reaches items in every right possession to claim their individual control. search; deny permission rejection to of ¶ At point agreed the the pull driver to understandable, this option was it side, agent the nothing had done would tie him to the cocaine. He also had rights violated the of the driver or say nothing, tacitly to to deny the passengers. The of subsequent words ownership; kept while this him from being the driver to the twice passengers, quoted search, deny able permission to to it did may the majority, be relevant to the not connect him the His drugs. deci- subjective of thoughts passengers, but sion was made difficult was in the what our issue is an objective determined from bag, police illegality. not The first standard, focusing solely of conduct choice was not alternative appealing; Hoak, police. supra. These were not the bag left unclaimed and searchable. of police, words nor were Having choose between a rock and a of an agent words of the police, and com- place appellant’s hard does not make action, prised governmental no much less choice coerced. illegality. No matter what the driver told ¶ majority rightly 9 I believe the ex- passengers, if done without re- coercion, quest presses there is concern governmental no constitutional about over- significance to these words. in the on drugs,”16 reaction “war but in requirement derogatory euphemism, Hoak did not create a that con- used to shroud all warning. sent is invalid absent Miranda-like proactive police techniques with an umbrella repeatedly Hoak states the of coerced issue years ago, suspicion. a war in reali- Called consent case, turns on the individual facts of a ty it never more a series been than rejects bright-line such a rule. skirmishes. We must evaluate each case on facts, letting instead of the term "war" political justify 16. Coined as a buzzword hobgoblin fogging analysis become a our tactics, aggressive phrase enforcement either direction. drugs,” “war on is now invoked more a not consti- Appellant rode did turn overreacts to the of this case. bus in which facts If either within stopped by police. This bus Appellant, tute a seizure “seized,” it was with uncoerced consent of the Amendment to meaning Fourth clearly to consent. Constitution, someone allowed or Article the United States pressure inside came from bus I, Pennsylvania of the Constitu- Section 8 appellant’s knowledge of the contents of tion. bag he chose to If examined disavow. ¶ of the facts My examination step by simply there is no step, course of events: following case reveals day. impropriety in the of this events Wilmington, Marcus A. Appellant, majority gives compelling While the us a the intent possession was convicted against of the need to guard reminder sub- or deliver a controlled manufacture governmental impropriety, the manifest of a small amount possession stance dislike here obscures technique of the used a December marijuana,18 stemming from simply the fact there no unconstitu- II, investiga- narcotics interdiction tional conduct. date, pas- was a Appellant tion. On that

¶ Accordingly, I dissent. Greyhound travelling on a senger Interstate 80. New York Cleveland on LALLY-GREEN, 11 JOYCE and JJ. Paret, Pennsylvania Agent Ronald of the EAKIN, join Dissenting Opinion by J. Office, Attorney General’s and Detective STEVENS, J., dissenting: Schwartz, County of the Monroe Dis- Kirk ¶1 The.sweeping conclusions and far- Office, conducting a Attorney’s trict

reaching Majority Opinion, effects of the interdiction at the De- operation narcotics intentioned, however well a serious strike Gap bridge with the laware Water toll legitimate blow to law en- actions of permission superintendent In- drug forcement interdiction teams. Bridge River Toll Commission. Delaware deed, Majority Opinion essentially at 42. Paret and De- Agent N.T. 5/14/97 opens public the doors of transportation plain Schwartz were dressed tective traffickers, drug removing any fear that clothes, jackets wore which identified but law enforcement officers will be allowed to officers. N.T. them as law enforcement engage in even a constitutional mere en- weapons 47. Both carried con- 5/14/97 passengers. counter with jackets. at 47. cealed their N.T. 5/14/97 ¶ 2 Instead of law enforce- hindering ¶ at Appellant’s stopped bus was 6 While ment rendering Pennsylvania’s high- and booth, asked its a toll Detective Schwartz way system a I drug freeway, would find Prather, driver, Nat if he had a few min- analysis that an of record and facts N.T. utes to allow routine check. 5/14/97 the law applicable case show that the ac- did not order at 12. Detective Schwartz tions of the law enforcement officers here over, Greyhound pull and Mr. Prather the did not rise above level of a mere discretion policy gives its drivers company were, times, encounter, profes- and at all over such circum- sional, pull whether to under and appropriate, consistent with Moreover, N.T. at 12. Mr. Prather principles. I stances. constitutional 5/14/97 that if would find that the location of the mere the lower court testified before bus, encounter, the i.e. a did not render late he tell the running could was “seizure,” interaction a and I would con- time to stop, that he didn’t have officers clude that abandonment of the Appellant’s day late that and running he was but voluntary. bag containing the cocaine was at the check. N.T. agreed 5/14/97 the bus Mr. Prather then moved 16. specifically find that under I would pass, of travel to let traffic of the lane case, out drug of this circumstances immediately be- pull-off it in the investigation performed parking on the interdiction 113(a)(31). 780-113(a)(30). § § 18. 35 P.S. 17. 35 P.S. 780— yond the plaza, toll next public to the lack of identification and limited amount telephones. (9) (10) N.T. at 20. Mr. nine to ten luggage, in light 5/14/97 bus, Prather exited the and Detective City hour New York to Cleve- trip from Schwartz Agent Paret asked him to Appellant land on had embarked. which see tickets which were collected N.T. at 46. 5/14/97 passengers boarded the bus. N.T. 5/14/97 per- Agent Appellant Paret asked for 20. at An examination of the tickets re- plastic bag. mission to N.T. search vealed that Appellant, travelling under the Appellant responded, “Go at 50. 5/14/97 “Smith,” name had made a cash ticket ahead,” bag. Agent and handed Paret at purchase for p.m. trip 1:35 a 2:15 p.m. N.T. 50. handed Agent at Paret 5/14/97 from New City York to Cleveland. N.T. and, Schwartz, bag with Detective at Agent 44-45. Paret testified 5/14/97 Appellant’s permission, Detective Schwartz before the lower court that certain indica- at bag. searched the N.T. 29. 5/14/97 tors raised his suspicions, including the several cloth- bag contained articles of “Smith,” name is frequently which used ing, sneakers, pair Asics and a new name; those travelling under an assumed sales store receipt department departure from New York City, at “Saks Fifth N.T. 29. Avenue.” city narcotics; 5/14/97 source the cash ticket During Appel- their initial interaction with purchase; purchase and the of the ticket lant, Agent stood in the in close Paret aisle proximity beginning (9) seat, rear nine ten trip. Appellant’s hour N.T. and Detective 5/14/97 at 44-46. Agent Schwartz stood behind N.T. Paret. 50. Agent at Paret did not 5/14/97

¶ 7 Agent Paret and Detective Schwartz touch their conver- Appellant during initial Agent boarded the bus and Paret identi- sation, the of the bus was aisle unobstruct- fied himself and Detective Schwartz over ed, and door N.T. open. the bus public system, address explaining that at 48-49. were on the bus to conduct a brief 5/14/97 drug investigation, thanking the pas- ¶ 9 During investigation, pas- other sengers in cooperation. advance for their sengers requested their identify N.T. at Detective 53. Schwartz 5/14/97 baggage, bag but one been proceeded to the restroom to check for placed in compartment the overhead re- contraband, and, starting at the back of 27-28, mained N.T. unclaimed. 5/14/97 bus, Agent began Paret speaking with up 32. Schwartz Detective walked tickets, passengers, examining their twice, down the holding aisle of attempting passengers to match with bag aloft to allow its owner to claim it. carry-on their baggage. N.T. 5/14/97 N.T. When no iden- one 5/14/97 Appellant sitting in a window seat tified the bag, Detective Schwartz exited bus, several rows from rear of the bus, requested per- and Mr. Prather’s occupying another the aisle passenger seat bag. mission to at search N.T. 5/14/97 to him. at next N.T. 48. When 5/14/97 search, 32. Mr. Prather consented to the Agent Appellant Paret asked to see his contained, which the bag revealed form of receipt ticket and some identifica- (6) among things, other over pounds six tion, Appellant the ticket produced receipt, box, cocaine in an shoe check Asics and a told the no identification. Agent but he had summary security with a social number on Agent N.T. at 45-46. Paret exam- 5/14/97 at it. N.T. 51. Paret Agent 5/14/97 then returned it to receipt, ined ticket bus, and Detective Schwartz reboarded the at 49. Agent N.T. Par- Appellant. 5/14/97 Appellant placed and discovered had also if he had Appellant et asked the small plastic bag white in the overhead identified a small baggage, Appellant and compartment, placed and the new As- plastic white underneath his seat. bag ics sneakers under the seat in front of him. Agent Paret’s sus- N.T. 50. 5/14/97 N.T. 34. by Appellant’s Detective Schwartz picions heightened 5/14/97 filed a di- Appellant years imprisonment. the Asics sneakers matched observed that and, Court, on Febru- containing the shoe the cocaine found rect to this appeal box N.T. at 35. bag. 25, 1998, in the unclaimed panel member issued ary a three 5/14/97 Agent passengers’ checked the other Paret vacated the which opinion a memorandum feet, wearing none were and found that motion suppression denial of Appellant’s Ap- Asics sneakers. N.T. 5/14/97 The Common- for trial. and remanded pellant handcuffed and removed from was reargument for application filed an wealth bus, the search during and incident to banc, May granted en which was arrest, Appellant’s a small amount of mari- juana was discovered. N.T. at 35. 5/14/97 ¶ Court, appeal Appel- 11 On before Appellant given warnings was Miranda19 (1) issues: following lant has raised and information for a provide asked to as a matter the trial court erred Whether history form. N.T. at 35- personal 5/14/97 failing and of law abused its discretion security The social number 54-55. suppress; grant Appellant’s motion Appellant this infor- gave part (2) erred Whether the trial court as a security mation as the social was same matter of law abused its discretion in number summary. found on the check sentencing Appellant. N.T. at 36. 5/14/97 suppression issue Addressing 27, 1997, February Appellant On first, the standard of review has following filed an motion pre-trial seeking omnibus been enunciated: suppression grounds on the ruling suppres- we review the When search of possessions his vio- court, determine lated the sion we must whether Constitution of Common- Pennsylvania findings supported wealth of and the its factual are Constitu- tion of the United States. On March record. the defendant chal- Where 1997, the court filed suppression an order lenges ruling suppres- adverse indicating going it was decide the court, only we will consider sion omnibus motion based pre-trial on the prosecution evidence for the and what- briefs of parties testimony and notes of ever evidence for the defense which is of a preliminary hearing before conducted whole; the record as a uncontradicted on Eyer District Charles P. Justice on De- record, if there is on the we are support cember 1996. The motion was subse- court, bound and we suppression quently order, a March denied if the may only legal reverse that court accompanied by opinion. five page A conclusions drawn from these facts are petition the motion sup- to reconsider Moreover, the sup- even if erroneous. press May also denied. On conclusions, err in its pression court did trial, Appellant to a jury waived may court nevertheless reviewing and, trial, May following bench where there other affirm decision possession he was guilty found admissibility legitimate grounds substance, possession controlled in- evidence. challenged deliver, marijua- tent to possession Holt, na. deferred Sentencing pending (citations omitted). (Pa.Super.1998) pre-sentence investigation. Common- motion to denying Appellant’s subsequently wealth filed a notice that it trial I hold that the court suppress, would mandatory a minimum going to seek findings fact consistent with those made of § sentence to 18 pursuant Pa.C.S.A. 7508. and, Court, by this based on supra, made

Appellant objected imposition of a (1) findings, concluded that: detain- those as mandatory minimum sentence unconsti- tutional, was a Appellant the bus on which ing but on June (7) (14) a of not constitute seizure passenger to did sentenced to seven fourteen 1602, Arizona, 436, 16 19. U.S. L.Ed.2d 694 Miranda v. 384 86 S.Ct.

1180 Appellant within of the meaning from crime. In such determina- making Fourth tions, Amendment to the United States contact of have types police three Constitution; (2) and the warrantless by Pennsyl- of recognized been the courts search “Saks bag of the Fifth Avenue” [the vania: bag]

unclaimed did not an un- constitute The first encounter” of these a “mere lawful Appellant search since had aban- (or information) request for which need and, therefore, bag doned the had no rea- by any not be level of supported suspi- expectation privacy sonable of at the time cion, to compulsion but carries no official court opinion the search. Trial filed second, stop respond. or an at 3-5. 8/27/97 must “investigative sup- detention” be ¶ 14 Pursuant to the standard of review ported by suspicion; it sub- Holt, supra, in enunciated I would con- jects period a to a and a suspect stop clude findings sup- factual of the detention, does not involve such co- but pression court are the rec- supported ercive conditions as to constitute the ord, further, legal and that the conclusions functional arrest. Fi- equivalent of an findings drawn from those are errone- nally, an or arrest “custodial detention” ous light in of the evidence of record must be supported probable cause. a light viewed in favorable to the most S.J., 637, Interest 713 Commonwealth as verdict winner. There- omitted). (citations A.2d 47 n. 3 fore, I suppression would affirm the ¶ 17 respect “With conduct that police pre- court’s denial of Appellant’s omnibus falls short an investigative stop, trial motion. it clear Supreme Court made ¶ Despite Appellant’s assertion that simply ‘seizure does not occur because both his and state federal constitutional approaches officer an individual and violated, rights have been he fails differ ” a few questions.’ asks United States of distinguish any way entiate or in pro Kim, Yong Hyon America v. F.3d granted by tections the Fourth Amend (3d Cir.1994) Bostick, (citing Florida v. Constitution,20 ment to the United States U.S. 115 L.Ed.2d compared protections granted by (1991)). coercive “Absent some con- Article Section the Pennsylvania 8 of or police, request cooperation duct wording Constitution.21 The of the Fourth automatically consent search does not to. nearly Amendment is that of identical to undeniably convert an permissible encoun- Article regard Section 8 with to unrea into ter seizure ...” illegal Common- seizures, sonable searches al and (Pa.Su- Shelly, wealth v. though the courts are not bound inter (citation omitted). per.1997) pret provisions the two as if were one same, and the Ed explained This Court In the In- munds, Jermaine, terest (1991) (citations omitted), 895-896 in the following A.2d 1058 that the factors judice case sub I nei would conclude that determining be considered when provision ther has been violated. an encounter with the rises to the level of a of the “whether person: seizure Attempting type to determine what authority officer makes show of of police conduct is “unreasonable” re- force, the demeanor exercises officer’s quires balancing privacy rights location, expression, manner of and the citizens with the needs of the legitimate those citizens or state- protecting any interrogatories force content per- people people 20. to be "The shall be their "[T]he secure secure effects, houses, sons, persons, papers, houses, their papers possessions ” seizures, against unreasonable searches and Pa. unreasonable searches and seizures.... Const. shall not violated....” U.S. 1, § Const. Art. IV. Amend. (cita- Jermaine, Bostick, 111 S.Ct. 2382. 501 U.S. at ments.” at omitted). the officers suspicion, circum- Examples of articulable tions Without ticket might which indicate a seizure his present stances to passenger asked a presence Bostick, include “a person threatening the at U.S. identification. officers; a the police display matched, of several items S.Ct. 2382. These officer; physical some weapon pas- the immediately returned to and were citizen; or touching person the Bostick, U.S. at 111 S.Ct. senger. or tone indi- language the use of voice explained then their The officers 2382. that officer’s cating compliance the if he presence passenger and asked the Jermaine, might compelled.” request his luggage. to consent a search would A.2d at In the absence of such 431-432, Bostick, at 111 S.Ct. 501 U.S. evidence, a contact between an officer and de- Although passenger later cannot, law, citizen as a matter amount gave he consent to search nied Jermaine, of that person. to a seizure cocaine, the officers found bag in which omitted). (citation A.2d at 1061 that he was informed of and also denied 19 In addition to above circum consent, to the United right his refuse stances, state, as the courts of this as well found that this is- Supreme States Court states, adopted courts of have other question a of fact which had sue involved following for deter objective standard the trial in the been resolved court of force a mining what amount escalates favor, concluded that state’s and therefore investigative mere encounter into an det been of his passenger advised whether, ention:22 under all the circum Bostick, to refuse consent. 501 U.S. issue, surrounding stances at incident arrest, 432, 111 S.Ct. 2382. After his at person reasonable would he was a believe co- suppress moved to passenger Matos, free to leave. caine, but the motion was denied and Bostick, 501 at convicted. U.S. was (citation omitted). test applied This S.Ct. 2382. police airports cases contact in involving ¶ Despite the fact that the United stations, and bus but United States held repeatedly Supreme States Court Bostick, Supreme Court in found supra, not rise police questioning mere does police is a that where contact initiated on seizure, Bostick, a level of 501 U.S. itself, analysis bus the “free to leave” is passenger ar- at 111 S.Ct. is inapplicable, appropriate inquiry and the appeal that his case was different gued on a person “whether reasonable would feel in the questioning occurred because free to the officers’ requests decline and, bus, of a under such circum- confines otherwise terminate the Bos encounter.” stances, person a would reasonable tick, 501 U.S. at 111 S.Ct. 2382. free leave the bus because have felt Bostick, 20 In the U.S. Supreme and a go passenger was nowhere there adopt held that it is for the error states being the bus run risk leaving would every police rule per a se encounter losing baggage whatever stranded case, part bus is a In that on a seizure. compartment. Bos- luggage locked drug program, of a interdiction two tick, U.S. 111 S.Ct. 2382. insignia wearing badges officers States court noted United during stopover boarded misplaced, be- focus was passenger’s Bostick, Miami to Atlanta. a bus is seated on person [a] cause “when 431, 111 S.Ct. 2382. One of the officers leave, degree has no desire waist, but gun pouch carried a in a feel that would the bus. gun did not remove the while on which rea- tionary have a seizure where investigative known as 22. An detention also activity suspicion that criminal "Terry Su- stop," after the United States sonable Ohio, Terry U.S. afoot. preme Court decision that name precau- 20 L.Ed.2d 889 permitted officers effect he or she could Pennsylvania leave not an accurate Supreme measure of the coercive effect of the en appeal Court addressed the of a defendant Bostick, 435-436, counter.” 501 U.S. at four approached by who been 111 S.Ct. 2382. ex The court further officers in a train station. When offi- plained that that passenger fact cers asked the defendant if he would mind them, did not feel free leave to the bus did not speaking with defendant and his him, mean that the police had seized but companion away, backed with the officers was instead the natural result of deci following, until the defendant was backed sion to remain on bus which was Lewis, up a wall. 535 Pa. at Bostick, scheduled to depart. 501 U.S. at A.2d 622. After his arrest and convic- 435, 111 S.Ct. 2382. The free passenger’s possession tion for with the intent to deliv- dom of by movement was restricted a fac er a controlled conspiracy, substance and independent tor Bos conduct. appeal defendant’s reached the Penn- tick, 501 U.S. at 2382. sylvania Court Supreme allegations on Supreme United States Court concluded Fourth Amendment Article Section that the appropriate inquiry in such a situ Supreme 8 violations. The Court ad- whether, taking ation is into account all of allegations by dressed the applying the encounter, circumstances of a rea Bostick standard conclude that “under person sonable feel would free to decline circumstances, totality the police the officers’ requests otherwise termi conduct would have communicated to a Bostick, nate the encounter.23 501 U.S. at person person was not 435, 111 S.Ct. 2382. Lewis, free leave.” 535 Pa. at A.2d at 623. concluding In seizure Thus, emphasis Appellant’s occurred, the Court noted that is not “[i]t perceptions as to whether or he felt single our intention to out the fact that the free to leave the bus misdirected. This Appellants were confronted four Court’s focus is on whether or not the dispositive inquiry, officers as of our but conduct of the law enforcement officers the nature of the would have confrontation demon- person caused a reasonable authority strated a show incapable declining feel which consti- the officers’ re- quests or tuted restraint the Appellant’s en- liber- terminating otherwise Lewis, ty.” counter. The record in the case A.2d at instant supports conclusion the behavior

and conduct of Agent Paret and Detective ¶ 24 In Shelly, supra, this Court fol- way Schwartz could in no construed lowed the Pennsylvania Supreme Court’s a reasonable preventing one lead applying Shelly, Bostick. declining for in- request officers’ appellant passenger was a in car stopped formation or terminating otherwise en- by Pennsylvania two State Police officers Any Appellant may counter. perception speeding. Shelly, for 703 A.2d at 501. have had that he was “restricted” was Both the appellant driver and the independent caused circumstances identification, asked for but neither could the conduct of offi- the law enforcement any, produce appellant and the gave false cers, inapplicable and therefore to a deter- name to the police, giving addition mination Appellant whether was vague contradictory answers their Bostick, “seized.” supra. questions. Shelly, A.2d at 501. A

¶ 23 The Bostick ap- standard has been check revealed that the vehicle was not stolen, plied helpful in several to review of registration cases card was returned driver, example, the case hand. For he was given warning Com- Lewis, monwealth v. the speeding Shelly, violation. . Noting pas- court Supreme the trial denied the Court reversed the Florida senger’s suppression making motion without case. and remanded the fact, express findings U.S. Bostick, (citing A.2d at 502 police Shelly, then

A.2d at 501. The officers Lopez, they supra; if could search the asked the driver (1992)). vehicle, Shelly, the and driver consented. Pa.Super. the A.2d at 501. After the driver and 70S also has been 25 The Bostick standard car,24 stepped from the both appellant on trains. In to encounters applied frisked, pistol

were and a was discovered Kim, the appellant disputed supra, Shelly, in the waistband. appellant’s arose suppression of a motion which denial Later, appellant’s A.2d at when the 501. be- effort which drug a interdiction prison, clothes searched at the nar- knocking on gan a officer Shelly, cotics were discovered. train car “room- appellant’s door of the appeal, at 501. On raised appellant appellant opened ette.” When two issues for review: whether there was door, the officer identified himself justify to suspicion sufficient reasonable and his badge appellant to the showed his car, to request for consent search the Then, Kim, 27 at 949. F.3d companion. Terry weapons whether valid search for hallway outside the kneeling while in the Shelly, was conducted. 703 A.2d at 502. door, questions the officer asked several concluding request to search In trip and asked regarding passengers’ rights, appellant’s did not violate to their tickets and identification. see some Court stated: Kim, passengers 27 F.3d at 949. Both Generally, no there is threshold of tickets, the officer provided their which search; to suspicion request needed for a them, to but immediately handed back for consent to search obviates the need to appellant’s companion pro- was unable any suspicion part of the of the level Kim, at 27 F.3d any vide identification. voluntarily police. If the driver herein ap- the officer asked the 949-950. When search, permission for the then no gave companion they his had pellant and analysis of the information known they responded luggage, in their drugs troopers necessary. is The trial court not, to a and then consented did freely given, found that consent was Kim, 27 F.3d luggage. search dispute find- we find no reason to cans bag contained appellant’s 950. The ing. Vegetable All-Natural marked “Naturade supra, we addressed a simi- Lopez, Protein,” initially the appellant lar situation wherein officers made a present, then he received as a claimed eventually asked stop valid traffic guy in bought from “the later claimed for consent to search. This court held Kim, appellant The 27 F.3d L.A.” requested Lopez’s consent was while he contained, identify what the cans could leave, was not free to as the officer still “what asked respond and did not when registration. held his license and Kim, The officer 27 F.3d at 950. guy?” subject deten- Lopez court found substance, which turned out tested rendered tion that was coercive and Kim, 27 F.3d methamphetamine. Here, voluntary. less than consent noted, the driver free the trial court argued appeal, appellant On returned go; his cards been occurred seizure that an unconstitutional him, speed- for given warning he was appellant questioned the officer when hold him trooper had no ing, and Bostick, court, citing train. The on the request. We at all at time of simply seizure does not occur found that “a Lopez to extend to create decline an indi- approaches officer because noncoercive legitimate, absolute ban on Only questions. asks a few vidual and requests for consent. roadside get out. Commonwealth stopped Brown, that to miti- car appellant did not contest 24. The stops, no danger gate in traffic activity necessary suspicion of criminal lawfully request occupants of a police officer, by when the of physical means sonable to know his presumed authority, force show of some questions not to answer without fear way liberty may restrained the of a citizen prosecution,” the court concluded that [a court] conclude a ‘seizure’ has oc- appellant the failure of his to advise Kim, curred.” 27 F.3d at 950. The court right to terminate the conversation itself further “potentially concluded that incrimi- did not unconstitution- make encounter nating questions do not themselves Kim, al. 27 953. F.3d at Kim, make an encounter coercive.” 27 In determining that no constitution- F.3d at Although 953. ar- appellant al violations occurred in the instant case gued that he was the con- seized because regard with Appel- contact between tact place took in a confined in area a non- lant police, and the I make the would public setting and the officer blocked following findings and conclusions: The roomette, exit of the the court concluded drug interdiction effort which in resulted that the officer doorway did not block the Appellant’s arrest with the was conducted and “an may individual decline an officer’s permission of the Delaware River Toll request without fearing prosecution, be- Commission; Bridge already the bus was more, cause a cooperate, refusal to without stopped when Detective Schwartz asked objec- does not furnish the minimal level Agent bus driver he and Paret could justification tive needed for a or detention check; perform a and the bus driver vol- seizure,” further, that “the location in untarily to request consented to the board itself does not deprive an individual of his Thus, ability encounter; bus. there was no “seizure” of terminate an can he reject an passengers. Shelly, supra. private, invitation to talk in a bus and its Kim, well as a public place.” board, F.3d Once Paret Agent introduced (citations omitted). 951-952 The court explained himself and the reason for the also concluded that a area confined Moreover, presence. officers’ he did not Kim, train is inherently not coercive. passengers, threaten the or make an ex- rejected F.3d at 952. The court the appel- authority display cessive which would argument lant’s that a person “reasonable compliance intimidate them or coerce with would not feel free decline to answer the his request cooperation. Agent for Paret’s question door, officer’s or to shut be- regard actions did not elevate the cause ‘it intelligence doesn’t take much for an investigatory stop. encounter to Nor person to believe that shut- did the fact that not Agent spe- Paret did ting the door the face of such an intrud- cifically indicate to the passengers that er would tobe invite more serious intru- questions were free to not answer his Kim, sion.’” (quotation F.3d at 952. investigatory elevate the encounter to an omitted). and, disagreed, citing court Matos, stop. 543 Pa. at A.2d Bostick proposition that an individ- (“It long has been the rule in Penn- may ual decline an officer’s request with- sylvania duty individual has no out fearing prosecution, found that under stop respond inquiry by police. or to an it, the facts before “a reasonable police may initiate an Although the en- would have felt or speak free decline to a suspect, request counter with infor- to terminate his conversation with [the any mation absent level suspicion, Kim, officer].” 27 F.3d at 952. The court encounter ‘carries to official compulsion rejected also the appellant’s argument that Kim, ”). See supra. stop respond.’ or he was “seized” because the officer failed Agent began 28 When Paret his inter- to advise him this to “decline the Appellant, Ap- action with stood behind officers’ requests or terminate the encoun- seat, pellant’s leaving path a clear down ter,” finding “absence such open the aisle to the bus door. He did not not necessarily advise does eliminate the Appellant any touch Appellant, consensual threaten nature the encounter.” Kim, way, F.3d at “a rea- him of Noting or even accuse criminal abandonment” regard to “coerced Appellant produced his with activity. After must also containing retain it the cocaine receipt, Agent bag ticket Paret did not but in- has conversing Appellant, while that a defendant fail. “It axiomatic Agent it him. Par- stead handed back to search and sei to contest the standing no polite demeanor was and non-eonfron- voluntarily et’s has which he zure of items tational, weapon Tillman, and his remained hidden abandoned.” Commonwealth jacket During all times. 148, 150 Ap- between Paret and Agent interaction omitted). (citation ain pellant, Detective Schwartz remained Shoatz, Pa. non-threatening position Agent behind (1976) (“[I]t no one is well settled that Paret, Appel- where he would block of a search standing complain The law enforcement officers lant’s exit. voluntarily that he has property seizure of manner, a clearly professional acted in abandoned.”). However, this Common of principles consistent with constitutional theory abandon adopted a of wealth law, and not the their conduct did elevate only that the seized ment when it is shown Bostick, supra; encounter to “seizure.” of un was not discarded because evidence Kim, supra. Shoatz, coercion. 469 Pa. lawful ¶ my analysis circum- 29 Based 553, Pennsylva the A.2d at 1220. As 366 Court, to presented stances explained in Shoatz: nia law, I applicable case find that the location predi- theory of abandonment encounter, bus, of i.e a not did render upon the clear intent of an individ- cated con- the interaction here a “seizure.” I of relinquish property to control ual clude that under all of the circumstances possesses. encounter, of surrounding this the conduct question primarily Abandonment is would Agent and Detective Schwartz Paret intent, may and intent be inferred of have not communicated a reasonable done, and other spoken, from words acts person person not free was All relevant circum- objective facts. Agent requests, decline Paret’s or other- al- at the time of the existing stances Bostick, wise terminate the encounter. consid- abandonment should be leged Lewis, Moreover, supra; supra. I find pursuit the existence Police or ered. Appellant, interaction between not of itself investigation does Paret, Agent and Detective did Schwartz involuntary. The render abandonment not rise above of a the level mere encoun- is not strict issue abandonment ter, Appellant and that was not “seized” sense, but whether property-right for the purposes the Fourth Amend- by the search person prejudiced such, or As I ment Article Section 8. behind, discarded, or oth- voluntarily left bag conclude that his consent to search the in the relinquished his interest erwise at his voluntary, feet constitu- no that he could question so property regard to tional claims with the search of expectation a reasonable longer retain bag must fail. at the time of regard to it privacy with ¶ determination, it light 30 In of this search. suppression clear that the court’s denial Shoatz, A.2d at 1220. Pa. at 366 regard to al- motion with Appellant’ (citations omitted). leged Appellant’s person seizure of in- ¶ and did not supported the record subject is not If a legal volve erroneous conclusions. As occurs, when an abandonment seizure such, I Court is bound believe that this is not the result of abandonment action suppression ruling. court’s coercion, and the aban- unlawful evidence. may be admitted as item doned Appellant’s contact 31 Because 715 A.2d Riley, was a Paret and Detective Schwartz Agent (Pa.Super.1998). encounter, argument I find that his mere judice, 33 In the case Assembly enjoy pre sub review the General a strong all relevant circumstances existing sumption constitutionality. Common alleged time of the Barud, 297, 304, abandonment shows wealth Pa. 681 A.2d Appellant (1996) intended abandon the (citing Commonwealth v. bag found, Mikulan, which the cocaine was can 244, 247, Pa. actions, or,

be inferred Appellant’s (1983)). All doubts are to resolved more precisely, initially inaction. When in favor of sustaining constitutionality by Agent asked any bag- Paret he had legislation. Bly gage, Appellant identified only bag stone, bag feet. When the second remained affirmed, 494 U.S.

unclaimed, and Detective held it Schwartz (citing Hayes 108 L.Ed.2d 255 up aloft and walked and down the aisle two v. Erie Exchange, Ins. times, asking identify its owner to himself (1981)). “[Nothing but herself, Appellant Ap- remained silent. a clear violation of the Constitution —a pellant’s bag failure claim the under clear usurpation power prohibited —will such circumstances amounts abandon- justify judicial department pro Further, ment. the encounter between nouncing legislative an act of depart Appellant and the officers did amount ment unconstitutional and Glancey void.” unlawful coercion not and did 88, 77, 812, v. 447 Casey, Pa. 288 A.2d 818 render involuntary. abandonment (1972) Snyder, v. (quoting Busser 282 Pa. Shoatz, 553, 469 at Pa. 366 A.2d at 1220. 440, 449, (1925)). A. 128 80 In other Having concluded that a mere encounter words, obliged every “we are to exercise occurred Appellant between and the attempt to vindicate the consti officers and Appellant that was not tutionality of a uphold pro statute and encounter, during “seized” that I would Chilcote, visions.” Commonwealth v. 396 voluntarily further-conclude that Appellant 106, 429, 578 A.2d 435 cocaine, bag abandoned the containing Trill, (citing v. 374 Pa.Su Commonwealth and, result, as a I may would find that it 549, (1988)). 1106, 543 A.2d per. 1116 evidentiary be used for purposes. judiciary “The to declare a ¶ determination, Again, light 34 of this void, execution, statute and arrest its is I believe that it is suppres- clear that the which, courts, opinion one of all is sion court’s denial of Appellant’ motion coupled responsibilities grave with so regard of bag abandonment except it is never to very be exercised containing supported by the cocaine was clear cases.” Erie & North-East Rail the record and did not involve erroneous (1856). Casey, road v. 26 Pa. Co. conclusions, legal and, therefore, this court Moreover, firmly one the most estab is suppression bound ruling court’s lished principles our law regard. in this challenging party heavy has burden of

¶ Barud, light my proving 35 In an act regarding conclusion unconstitutional. Appellant’s claim, suppression ad- 545 Pa. 681 A.2d at In order I would sentencing allegation thusly: Ap- unconstitutional, dress his for an act to be declared pellant initially argues that the trial court party must act challenging prove the imposing erred in a mandatory minimum “clearly, palpably plainly” violates the Ostensibly, sentence. Appellant claims Barud, constitution. mandatory minimum sentences are A.2d at Blystone, supra. 165. See Final

unconstitutional as violative of individual I ly, note that: process rights Eighth due Amendment The power judicial review must not be

rights guaranteed under the Constitution. used means by as a which the courts I disagree. might judgment pub- substitute its ¶36 Pennsylvania policy legislature. lic for that of the The Supreme consistently has held judiciary question that enactments role of the not health, mandatory sentence legisla- imposing of the action of wisdom [the] pun- body, tive to see that and unusual only passes but it tantamount to cruel Green, muster. constitutional found ishment. As this court enacting Section legislature, by “the Bd., Pennsylvania Marketing Finucane offenses are seri- drug announced that Pa.Cmwlth. A.2d (1990)(citations omitted). public needs to ous crimes from which the Green, protected.” ¶ 37 Appellant’s policy arguments Therefore, mandatory we held that against sentencing mandatory sentencing by Section 7508 provided for shared by legislature either the or the and was not serves as a suitable deterrent courts of this Commonwealth. As the Pennsylvania held, Eighth Supreme Appellant’s a violation of an Court has mandatory sentencing provisions do not rights. Amendment person’s

violate Constitutional rights. ¶ case, In I would find the instant Bell, See Commonwealth v. Appellant received sentence which (1986). More is constitutional and not violative either specifically, Court has found Appellant’s rights Eighth due process that mandatory sentencing pro- minimum rights. Amendment process rights. visions do not violate due above, For the discussed I reasons Sargent, See Pa.Su- judgment would affirm the sentence. per. Sargent, only a panel of this Court found that the LALLY-GREEN, 42 EAKIN JJ. in regard process

issue applica- due STEVENS, join Dissenting Opinion mandatory tion sentencing provi- sion, is no- J. whether defendant receives

tice the Commonwealth that will seeking imposition mandatory sen-

tence. Instantly, I to see Appel- fail how fact,

lant has process. been denied due In

Appellant has to specifically failed discuss Pennsylvania, his rights

how have process due been vio- COMMONWEALTH lated. Appellant Appellant, was informed that Commonwealth would be a sen- seeking mandatory tence under sentencing BOOTH, Appellee. Jeffrey Robert Thus, guidelines. Appellant’s claim is meritless. Superior Pennsylvania. Court of ¶ 39 Appellant argues- next that manda- Submitted Jan. tory sentencing his provisions violate Eighth against cru- protection amendment April Filed punishment el his unusual because

punishment disproportionate

crime for which he was convicted. Green, 406 Pa.Super.

120, 593 A.2d 899 Court found § application P.S. Eighth Amendment’s violation of

prohibition pun- cruel and unusual against application

ishment and that its was not

disproportionate to a defendant’s crime. in Green reasoned that due

The defendant poor physical age advanced

Case Details

Case Name: Commonwealth v. Wilmington

Court Name: Superior Court of Pennsylvania

Date Published: Mar 31, 1999

Citation: 729 A.2d 1160

Court Abbreviation: Pa. Super. Ct.