Commonwealth v. Vasquez ( 1997 )

OLSZEWSKI, Judge,

dissenting:

While the expression of the majority view provides a persuasive analysis and sound rationale, I am obliged to differ. Because I believe that Vasquez’s encounter with the police did not constitute a “seizure” under the Fourth Amendment of the United State’s Constitution, I must respectfully dissent.¹ There are three characterizations of police encounters with suspects:

a mere encounter, an investigative detention, or a formal arrest_ A “mere encounter” (or request for information) need not be supported by any level of suspicion, but it carries no official compulsion to stop or to respond_ An “investigative detention” must be supported by reasonable suspicion; it subjects the suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. ... A “custodial detention” must be supported by probable cause; it is deemed to arise when the conditions and/or duration of an investigating detention became so coercive as to be the functional equivalent of arrest.... Formal arrest requires probable cause, and needs no further definition.

Commonwealth v. Tindell, 427 Pa.Super. 399, 404, 629 A.2d 161, 163 (1993) (citing Commonwealth v. Douglass, 372 Pa.Super. 227, 238-239, 539 A.2d 412, 417-418 (1988) (citations omitted)). Thus, all encounters between a citizen and police are not so intrusive as to trigger the protections provided by the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); In Interest of Jermaine, 399 Pa.Super. 503, 507-509, 582 A.2d 1058, 1060 (1990), alloc, denied, 530 Pa. 643, 607 A.2d 253 (1992). A policeman is not prohibited under the Constitution from approaching a person on a public street or in a public place and questioning him. U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Tindell, 427 Pa.Super. at 403-405, 629 A.2d at 163.

Both an investigative detention and a custodial detention constitute seizures. A seizure of a person sufficient to trigger Fourth Amendment protections occurs “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” In Interest of Jermaine, 399 Pa.Super. at 508, 582 A.2d at 1060 (quoting Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565, 572 (1988)). The factors which the Court considers in determining whether an encounter with the police constitutes a seizure within the Fourth Amendment include “whether the officer makes a show of authority or exercises force, the officer’s demeanor and manner of expression, the location, and the content of any interrogatories or statements are relevant to the determination.” Id. (citing Commonwealth v. Williams, 298 Pa.Super. 466, 470, 444 A.2d 1278, 1279 (1982) and Commonwealth v. Jones, 474 Pa. 364, 371-372, 378 A.2d 835, 838-840 (1977)).

With these standards in mind, I conclude that appellant’s encounter with police did not amount to a seizure within the Fourth Amendment, but rather constituted a “mere encounter” for which no level of suspicion was required. In reviewing the denial of a motion to suppress evidence, we must determine

whether the factual findings are supported by the record. In making this determination, we must consider only the evidence of the prosecution’s witnesses, and so much evidence of the defense that remains un-contradicted when fairly read in the context of the record as a whole. When the evidence supports the factual findings, we are bound by such findings, we may reverse only if the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Medley, 531 Pa. 279, 284, 612 A.2d 430, 432 (1992); McElrath v. Commonwealth, 405 Pa.Super. 431, 436-437, 592 A.2d 740, 742 (1991).

Instantly, the trial court’s following factual findings are supported by the record: Appellant was approached on a public bus by Agent Paret and Trooper Hodges who introduced themselves and asked appellant if she would speak to them. There was no display of a weapon or other show of authority to intimate coercion. Agent Paret merely questioned appellant about where she had been, where her destination was, what the purpose of her trip was, and whether he could inspect her bus ticket. The lawmen’s demeanor at all times was polite and their tone was conversational. The isle of the bus was never blocked by the lawmen, the bus door was always open and appellant was not physically constrained by the officers. Agent Paret then questioned appellant concerning a backpack on the floor between her legs. Appellant acknowledged that the bag belonged to her and the agent asked if he could search it. Appellant replied, “Go ahead and look.”

Under the circumstances of this case, I would hold that appellant was not “seized” within the Fourth Amendment prior to consenting to a search of the bag, as her experience with the police constituted a “mere encounter.” In Interest of Jermaine, supra; Tindell, supra. A reasonable person in appellant’s situation would have felt free to leave because her liberty was never constrained by the police. Hence, the encounter did not rise to such a level which would trigger Fourth Amendment protections. Id.

Appellant’s encounter with police is similar to the police encounters described in In Interest of Jermaine and Tindell in which we held that defendants were not entitled to Fourth Amendment protections because the police questioning did not rise to the level of a seizure. Id. In In Interest of Jermaine, an officer approached defendant in a public train station, identified himself as a narcotics officer, and asked to speak to defendant for a moment. Defendant’s path was never blocked, nor did the officer brandish a weapon or make any other display of authority. The officer asked defendant, who was visibly nervous, about her point of departure, whether she had a ticket, and what her name was. The officer never spoke to her in a threatening manner. Then, the officer asked her for consent to search her bag to which she responded: “Yes.” Upon opening the bag, the officer found cocaine. We held that defendant was not “seized” (before the search of the bag) within the Fourth Amendment because the totality of the circumstances indicated that a reasonable person would have felt free to leave. In Interest of Jermaine, supra.

Under similar circumstances, in Tindell, after perceiving defendant, who fit a number of characteristics indicative of a drug courier, deplaning in an airport, two officers asked defendant if she would speak to them, and told her that she was not obligated to talk to them. Defendant answered the officers’ questions and consented to a search of her person. After defendant unzipped her jeans, she produced a package and handed it to an officer. She indicated that the package contained cocaine and she was placed under arrest. We held that defendant only had a “mere encounter” with the police and was not “seized” because she was apprised of her right to refuse to answer questions and consent to the search, and “there was no evidence that the officers retained her identification documents, blocked her path to exit, threatened her, demanded that she do anything, or touched her.” Tindell, 427 Pa.Super. at 405, 629 A.2d at 164. In short, these cases show that, as in the instant case, a person is not seized where his liberty has not been constrained by the police by a showing of authority or the assertion of physical force. Id.

Accordingly, the encounter in the instant case was not a “seizure” and constituted a “mere encounter” for which appellant’s Fourth Amendment guarantees were not implicated. Based on the foregoing, the trial court properly refused to suppress the 29.3 grams of cocaine discovered in the bag that Vasquez voluntarily consented to have searched. Therefore, I would affirm the judgment of sentence.

1 . Vasquez also purports to challenge her encounter under Article 1, Section 8 of Pennsylvania’s Constitution. Her challenge under our State Constitution, however, is commingled with her challenge under the Federal Constitution. Moreover, in presenting her State Constitutional claim, she fails to clearly brief and analyze the four factors required by our Supreme Court in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). Accordingly, I would find her challenge pursuant to our State Constitution waived.