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August 12, 1997


Appeal from the Judgment of Sentence entered December 8, 1995 in the Court of Common Pleas of Mercer County, at No. 479 Criminal 1995.

Appeal from the Judgment of Sentence entered December 8, 1995, Court of Common Pleas, Mercer County, Criminal Division at No. 479 Criminal 1995. Before FRAMPTON, J.

Before: Cavanaugh, J., Cirillo, P.j.e., Popovich, Johnson, Hudock, Ford Elliott, Saylor, Eakin, and Schiller, JJ. Opinion BY Eakin, J. Johnson, J. files a Dissenting Opinion which Popovich, J. joins. Ford Elliott, J. files a Concurring and Dissenting Statement and Schiller, J. files a Concurring Opinion.

The opinion of the court was delivered by: Saylor


Filed August 12, 1997

Mark K. Hoak appeals from the judgment of sentence entered in the Court of Common Pleas of Mercer County following his conviction for possession of marijuana and drug paraphernalia.

The issue before us is whether, after concluding a lawful traffic stop of appellant and stating "you are free to leave," a police officer's follow-up question constituted an investigative detention unsupported by reasonable suspicion, which vitiated appellant's response, an invitation to search. Because we find appellant's consent was given voluntarily and knowingly during a noncoercive encounter, we affirm the judgment of sentence.

The facts are undisputed. Around 1:45 a.m. November 22, 1994, Officer John Miller lawfully stopped appellant for straddling the center line, and driving erratically and with a burned-out taillight. After issuing a warning and returning appellant's driver's license and vehicle registration, Officer Miller told appellant he was free to leave. The officer then asked appellant if he would answer some questions; appellant said he would. The officer asked appellant what was in the luggage and duffle bag in the truck; appellant said, "Dirty clothes. Do you want to look?" When the officer asked, "Do you mind?", appellant said, "No." The officer searched, and found two bags containing marijuana, an envelope containing marijuana seeds and a marijuana cigarette in a stainless steel holder.

Charged with violating 35 P.S. § 780-113(a)(31) and (32), appellant moved to suppress the marijuana and paraphernalia; the trial court denied the motion. After a bench trial, the court convicted appellant of both offenses and sentenced him to a term of not less than twelve days nor more than one year imprisonment and to pay a $25.00 fine. This appeal followed, wherein appellant's sole complaint is the denial of his motion to suppress evidence; he contends his consent to the search was the product of an unlawful detention.

When we review the denial of a suppression motion, we must determine whether the record supports the court's factual findings. Commonwealth v. Abdul-Salaam, 544 Pa. 514, 524, 678 A.2d 342, 347 (1996), cert. denied, 117 S. Ct. 1337, 137 L. Ed. 2d 496 (U.S. 1997). In so doing, we consider only the evidence of the prosecution and so much of the evidence for the defense as, when fairly read in the context of the record as a whole, remains uncontradicted. Id. If the record supports the suppression court's findings, we are bound by those facts and may reverse only if the legal Conclusions drawn therefrom are in error. Id.

Under both federal and state constitutional provisions, people are to be secure in their persons against "unreasonable searches and seizures." Pa. Const. art. I, § 8; U.S. Const. amend. IV; Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996). *fn1 While appellant claims a violation under both constitutions, he fails to engage in any analysis pursuant to Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), suggesting how, under the instant circumstances, our state constitution provides greater protection than the Fourth Amendment. While the failure to brief Edmunds ' four-prong test is not fatal, Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995), appellant's reliance on state constitutional provisions is at best vague, if articulated at all, and he provides no compelling reason to depart from Fourth Amendment jurisprudence in this case. Appellant's privacy interests -- and his ability to cooperate voluntarily with police -- are sufficiently protected by a totality-of-the-circumstances analysis.

Not all personal intercourse between police and citizens involves seizures of persons. Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); *fn2 Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996); Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043 (1995). There is no constitutional prohibition against the police questioning an individual in a public place. So long as a reasonable person would feel free to go about his or her business, the encounter is consensual and no reasonable suspicion is required. Bostick, 501 U.S. at 434, 111 S. Ct. at 2386; Matos, 543 Pa. at 461, 672 A.2d at 775; Ellis, 541 Pa. at 292-94, 662 A.2d at 1047. "'Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.'" Bostick, 501 U.S. at 434, 111 S. Ct. at 2386 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16, 20 L. Ed. 2d 889 (1968)); Matos, 543 Pa. at 457-58, 672 A.2d at 774.

Thus, individuals have been seized only if there is an objective reason to believe they are not free to end their conversation with police and proceed on their way. United States v. Mendenhall, 446 U.S. 544, 555, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980); Matos, 543 Pa. at 458-59 n.7, 672 A.2d at 774 n.7 (Pennsylvania cases have consistently applied Mendenhall's objective test in determining whether police conduct amounts to a seizure or a mere encounter and are representative of state law pertaining to Article I, Section 8). Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, include

the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Mendenhall, 446 U.S. at 553-54, 100 S. Ct. at 1877. The crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would "'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Bostick, 501 U.S. at 437, 111 S. Ct. at 2387 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S. Ct. 1975, 1977, 100 L. Ed. 2d 565 (1988)).

Appellant essentially asks us to find it constitutionally impermissible per se for a police officer to ask questions of, or seek cooperation from, a citizen detained pursuant to a traffic stop. Appellant argues that asking if he "would answer some questions" after being told he is free to leave constituted an investigative detention because any reasonable person in his shoes would not have felt free to take the officer at his word and leave. With such a Conclusion we cannot agree.

An objective review of the totality of these circumstances shows the officer issued only a warning, returned appellant's registration and license, and specifically advised him he was free to leave. This clearly communicated to appellant, or to any reasonable person, that all business with him was completed, the traffic stop was over, and he was free to drive away. Appellant's argument ignores these facts. The suggestion of an illegal detention also ignores the complete absence of any evidence that the officer blocked appellant's vehicle or spoke in a threatening tone; indeed, the officer had gratuitously issued a warning instead of a citation, an act connoting friendliness, not menace. The officer did not touch appellant in any way, display a weapon, or demand that appellant do anything; by the time the officer asked if appellant would answer some questions, the only show of authority was the officer's uniform.

Absent some coercive conduct by police, a request for cooperation or consent to search does not automatically convert an undeniably permissible encounter into an illegal seizure any more than the giving of Miranda *fn3 warnings transforms a non-custodial setting into a custodial one. See, e.g., Commonwealth v. Morgan, 416 Pa. Super. 145, 150 n.2, 610 A.2d 1013, 1015 n.2 (1992), alloc. denied, 533 Pa. 618, 619 A.2d 700 (1993) (gratuitously giving Miranda warnings did not transform consensual interrogation into custodial interrogation).

Appellant's position would mean citizens are legally incapable of consenting to a search at any time during or following a traffic stop. This court has held they cannot consent while the officer holds their identification. Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177, alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992). Appellant now asks us to hold they cannot consent after their identification is returned and they are told they are free to go. We reject appellant's dangerously precedential assertion that all post-traffic stop questioning necessarily constitutes detention.

At oral argument, appellant and the Commonwealth cited Ohio v. Robinette, 73 Ohio St. 3d 650, 653 N.E.2d 695 (1995) ("Robinette I"), rev'd and remanded, U.S. , 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) ("Robinette II"). *fn4 Appellant relies on Robinette I to echo his position that any subsequent roadside interaction with police could not be consensual; such interaction, he argues, must be deemed to have been influenced by a lingering authoritative aura of the earlier lawful traffic detention. This postulate assumes a reasonable person must believe the officer was lying when he said "you are free to go," a rather paranoid and legally unjustifiable assumption unsupported by general logic, much less by any articulable facts of record. Appellant just avoided receiving a citation through the good graces of the policeman. In the face of such consideration and courtesy, where are the facts that would cause appellant to disbelieve he was free to go? Where is the coercion that suggests continued detention to a reasonable mind? The reasonable mind does not allow for such subjective speculation, much less a paranoid analysis that disregards the facts.

Moreover, the validity of this presumed coercion necessarily rests on appellant's subjective, self-serving and post-arrest assessment, rather than on the requisite objective examination of the totality of the circumstances. This is reminiscent of Bostick's argument that, after being questioned aboard a bus, he "must have been seized because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs." Bostick, 501 U.S. at 438, 111 S. Ct. at 2388. The United States Supreme Court emphatically rejected this argument because the "reasonable person" test presupposes an innocent person. Id. Experience further belies this argument. Our jurisprudence is laden with cases where people consent and confess for countless reasons, quite regardless of the consequences.

Similarly, however subtle or unintended, any implication that a police officer does not really mean it when he says "you are free to leave" impermissibly shifts the focus from objective facts to the officer's subjective intent, which "does not make otherwise lawful conduct illegal or unconstitutional." Whren v. United States, U.S. , , 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168 (1978)); see also Maryland v. Macon, 472 U.S. 463, 470-71, 105 S. Ct. 2778, 2783, 86 L. Ed. 2d 370 (1985) (whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer's actions under the circumstances, not on the officer's actual state of mind at the time the challenged action was taken).

We find no reason to differentiate the post-traffic stop situation from the casual and constitutionally-permissible police/citizen encounter on the sidewalk. After the traffic stop here was concluded, any prior authoritative "aura" was gone, and appellant was in the same position as any other citizen who is lawfully in proximity with police and asked a few questions. *fn5 To hold otherwise gives a citizen who initiates contact by illegal driving a greater degree of constitutional protection than one approached along the sidewalk.

We see no analytical reason or constitutional necessity for such disparate treatment. In this Commonwealth, pedestrians and motorists alike are protected by the same constitutions. The inquiry into whether a particular encounter constitutes a seizure must consider all the surrounding circumstances to determine whether police conduct would have communicated to reasonable persons that they were not free to decline the officer's request or otherwise terminate the encounter. This inquiry applies to encounters that take place on a city street or a bus, in an airport lobby or along the road following a traffic stop. See Bostick, 501 U.S. at 439-40, 111 S. Ct. at 2389 (whether questioning aboard a bus constitutes a seizure requires a consideration of all the circumstances surrounding the encounter); Robinette II, U.S. at , 117 S. Ct. at 421 (whether consent to search during a lawful seizure is valid is question of fact to be determined from all the circumstances).

Further, singling out this particular type of encounter as rendering otherwise legitimate action unconstitutional per se would create a bright-line rule that should be expressly disavowed "in recognition of the 'endless variations in the facts and circumstances' implicating the Fourth Amendment.'" Id. (quoting Florida v. Royer, 460 U.S. 491, 506, 103 S. Ct. 1319, 1329, 75 L. Ed. 2d 229 (1983) (plurality)). Robinette II specifically eschewed the bright-line rule that a lawfully seized defendant must be advised he is "free to go" before his consent to search will be deemed voluntary. Id. *fn6

Appellant relies on Commonwealth v. Parker, 422 Pa. Super. 393, 619 A.2d 735 (1993) and Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177, alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992). In Parker, a panel of this court relied on Lopez in concluding that after a lawful traffic stop, Parker was illegally detained, searched and seized. After stopping Parker for driving with an invalid license, police asked if they could search his vehicle for drugs or other contraband. Parker consented. Police seized a cassette tape in a tape recorder found under the driver's seat and, later, played the cassette without a warrant. The Parker panel found that while the stop was legal, detaining Parker after citing him for a traffic violation, seizing the tape (thus exceeding the scope of Parker's consent), and playing it without a warrant all violated Parker's constitutional rights. The panel specifically cited Lopez in holding that police illegally detained Parker because there was no reasonable suspicion of criminal activity. Parker, 422 Pa. Super. at 407-08, 619 A.2d at 742 (Hoffman, J., Concurring).

What the Parker panel omitted in its recitation of facts and constitutional analysis, however, was any consideration of whether police had returned Parker's license and registration and whether questioning after such return could give rise to a consensual encounter. As the Discussion in Lopez indicates, whether police return or retain a person's license, registration or other papers is critical to properly resolving the issue raised herein.

In Lopez, police validly stopped Lopez for a traffic violation. Without returning his registration, rental car agreement and license, police continued to question Lopez regarding his origin, destination, purpose and duration of his trip, and then asked for his consent to search. A panel of this court found this "continued detention and investigation" an unreasonable Fourth Amendment seizure. Lopez, 415 Pa. Super. at 262, 609 A.2d at 182. The illegality resulted from the officer's retention of Lopez's license and other papers because while police held his licence, Lopez was plainly not free to leave; indeed, he could not do so legally. *fn7

The Lopez panel found United States v. Guzman, 864 F.2d 1512 (10th Cir. 1988), overruled on other grounds, 71 F.3d 783 (10th Cir. 1995) persuasive. During a valid traffic stop in Guzman, an officer asked Guzman for his license and registration, which a computer check showed was in order. However, without returning his license, police began questioning Guzman and his wife. Like Lopez, Guzman was not free to leave while police retained his license, and was illegally seized under the Fourth Amendment. *fn8

Interestingly, the Lopez panel ignored a subsequent Tenth Circuit Court of Appeals' case, United States v. Werking, 915 F.2d 1404 (10th Cir. 1990), which addressed this issue and distinguished Guzman on this precise point. After validly stopping Werking and returning his license and registration, Officer Dyer asked if he was transporting contraband. Werking said, "No." Dyer asked if Werking would mind if he looked in the trunk. Werking said, "No," and allowed Dyer to look in some duffle bags where Dyer found marijuana.

The Tenth Circuit Werking court agreed Dyer's questioning after returning Werking's license and other papers did not violate the Fourth Amendment: "The initial investigative detention was concluded when Dyer returned Werking's license and registration papers. At this point, the encounter between Werking and Dyer became an ordinary consensual encounter between a private citizen and a law enforcement official." Id. at 1408 (emphasis added). The court clearly distinguished Guzman:

Before Dyer asked Werking any further questions, he returned Werking's driver's license and registration papers....The officer in Guzman, however, did not return the defendant's license before questioning him. The defendant legally could not proceed on his way. He thus was seized within the meaning of the fourth amendment. In the present case, however, Werking was free to leave the scene. He chose to engage in a consensual encounter with Dyer. We hold that Werking's responses to Dyer's questions about transporting [contraband] were the voluntary cooperation of a private citizen with a law enforcement official and were not obtained in violation of the fourth amendment.

Id. at 1409 (emphasis added); see also United States v. Lattimore, 87 F.3d 647 (4th Cir. 1996) (Lattimore engaged in consensual encounter with police after a traffic citation had been issued and his license returned; there was no illegal seizure to taint Lattimore's consent to a search).

While the paperwork during the traffic stops in Lopez and Guzman had been concluded, neither individual was free to leave, given the objective facts including police retention of license and registration. Neither individual was advised he was free to leave. Neither individual's encounter with police was transformed from nonconsensual (initiated by their illegal driving) to consensual. Clearly, Lopez and Guzman are not just distinguishable from the instant case, they emphasize two factors we agree are telling: retention of necessary documents, and absence of a statement indicating they were free to leave.

It is very small step from the presumption that no consensual exchange can follow on the heels of a concluded traffic stop to the complete outlawing of consensual encounters and consensual dialogues wherever they occur. The law is clear, however: Not every encounter, and certainly not the consensual post-traffic stop in the instant case, is a seizure. The Fourth Amendment and the Pennsylvania Constitution proscribe unreasonable searches and seizures; they do not proscribe voluntary cooperation. To characterize as a nonconsensual seizure appellant's encounter with police after the traffic stop concluded ignores the facts, the law and the application of the law to the facts. It is neither objectively reasonable nor constitutionally justifiable.

We find the events following the Conclusion of the traffic stop flowed from appellant's voluntary agreement to answer some questions, and are not properly attributable to the stop itself. Appellant was no longer being detained when he offered to let police search his bags. *fn9 It is well-settled that

one of the specifically established exceptions to the requirement of a search that is conducted pursuant to consent. If a person voluntarily consents to a search, evidence found as a result of that search is admissible against him. The consent, however, must be given freely, specifically, unequivocally, and voluntarily. The question [of] whether [the] consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.

Commonwealth v. Washington, 438 Pa. Super. 131, 136-37, 651 A.2d 1127, 1130 (1994), alloc. denied, 541 Pa. 638, 663 A.2d 690 (1995) (citations and quotations omitted); see also Robinette II, U.S. at , 117 S. Ct. at 421.

Since appellant was lawfully stopped and he voluntarily consented to a search during a subsequent permissible and lawful encounter, the evidence found was ...

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