Appeal from the Judgment of Sentence October 16, 1996, in the Court of Common Pleas of Montgomery County, Criminal, No. 3377-95. Before NICHOLAS, J.
Before: McEWEN, P.j., Popovich, and Olszewski, JJ. Opinion BY McEWEN, P.j. Olszewski, J., Files A Dissenting Opinion.
The opinion of the court was delivered by: Mcewen
Appellant, Madeline Vasquez, has taken this appeal from the judgment of sentence to serve a term of imprisonment of from three years to six years, imposed after she was found guilty, following a trial without a jury, of possession with intent to deliver a controlled substance, specifically, cocaine. Appellant was also sentenced to serve a term of probation of one year for the offense of possession of drug paraphernalia. We are obliged to vacate the judgment of sentence and remand.
The facts of the case have been aptly summarized by the trial court:
At approximately 11:05 a.m. on Tuesday, May 23, 1995, Agent Ronald Paret of the Pennsylvania Attorney General's Office, Bureau of Drug Control, was conducting a drug interdiction technique known as "working the buses," whereby a police officer boards a bus in a depot, approaches a passenger, and requests consent to search the passenger's luggage. Agent Paret was accompanied in this effort by Trooper David A. Hodges of the Pennsylvania State Police. Trooper Frye, with a K-9 Unit, remained outside the bus at all times and had no direct contact with the defendant.
Agent Paret and Trooper Hodges were not in uniform, however, both were wearing windbreaker type jackets clearly designating that they were police officers and their affiliation. Agent Paret's jacket read "Pennsylvania Attorney General" and "Police." Trooper Hodges' jacket bore the distinctive Pennsylvania State Police shoulder patches. Both officers' service weapons were concealed.
At approximately 11:05 a.m. a Capitol Trailways bus arrived at the King of Prussia bus depot in Upper Merion Township, Montgomery County, Pennsylvania. In keeping with the drug interdiction technique involved here, Agent Paret and Trooper Hodges asked the bus driver for permission to examine the tickets of all passengers on board the bus and for permission to board the bus and speak to the remaining four (4) passengers. The officers first identified themselves and their purpose and asked each passenger, in a conversational tone, "May I ask you some questions?" When the defendant responded in the affirmative, Agent Paret followed with a series of questions: "Where did you board the bus?" "What is your destination?" "May I ask to see your trip ticket?" "What is the purpose of your trip?" "How long do you expect to remain at your destination?" "Do you have any luggage?" "Did you pack your own luggage?" "Are you carrying any drugs?" "Would you mind if I searched your luggage?"
The defendant, Madeline Vasquez, was the last of the four (4) passengers Agent Paret spoke to on the bus. While speaking to the defendant, Agent Paret was standing to the rear of the defendant, to her right, in the aisle. Trooper Hodges stood in front of her, facing her, approximately two (2) seats away. Trooper Hodges was not blocking the aisle and the door of the bus remained open at all times.
The court credits the testimony of Agent Paret and Trooper Hodges that their demeanor at all times was polite and their tone was conversational. The defendant herself testified that Agent Paret was polite and never raised his voice and that the door of the bus was open. Defendant testified that Trooper Hodges was in the aisle, not in the seats as he testified, however, the court does not credit the testimony of the defendant in this respect. [The trial court found] that Agent Hodges was not positioned in the aisle and did not block the aisle in any way. Both Agent Paret and Trooper Hodges were very much aware of the need to maintain a non-coercive atmosphere so that the defendant would have no basis to conclude that she was being seized by the police.
The defendant agreed to answer Agent Paret's questions. She told him that she lived in The Bronx, New York, where she boarded the bus en route to York, Pennsylvania, to visit her aunt. Agent Paret then asked the defendant about a black Jansport backpack on the floor between her legs. Defendant acknowledged that the bag and its contents belonged to her. Agent Paret then asked, "Would you mind if I searched your bag?" The defendant replied, "Go ahead and look."
Agent Paret then opened the backpack and found a small brown paper bag inside a pair of folded blue jeans. The contents of the brown paper bag were readily visible to Agent Paret as it was too small to close completely. Agent Paret saw that the bag contained a digital scale and a clear ziplock bag containing two smaller clear plastic bags, each of which contained what clearly appeared to be cocaine and which, upon testing, was revealed to be 29.3 grams of cocaine.
Agent Paret testified with respect to the drug interdiction technique in question and explained that New York City is considered a "source city" for illegal drugs and that drug couriers are known to frequently use bus travel as a means of bringing the drugs into Pennsylvania cities, such as York. He explained the factors which served to heighten suspicion and may prompt a request for consent to search baggage. These factors include a "quick" trip, i.e., a very short stay at the destination point and a prompt return to the "source" city, payment for the ticket in cash, and the frequency of such trips.
The defendant, Madeline Vasquez, testified at the suppression hearing. She is now twenty years old, having been born on May 29, 1976. She had an eleventh grade education and lives in The Bronx. She testified that she did not know she could refuse to answer Agent Paret's questions. She further testified that she gave her permission to search her Jansport backpack because she thought that the police dog "would have smelled the drugs anyway and, if I lied, it would have been worse for me." She said if she refused permission to search her bag, she felt that the police would have thought that she was resisting.
The defendant never requested that the police terminate the encounter.
Nothing in the conduct or the attitude of the police served to communicate to the defendant that she could not refuse to answer Agent Paret's questions or that she could not refuse to grant consent to search her backpack.
Appellant now contends that the trial court improperly denied her motion to suppress because (1) the police officer did not possess probable cause nor reasonable suspicion that a crime was being committed on the bus, (2) appellant was seized as the result of the entry of the bus by police officers, (3) the officers did not possess probable cause nor reasonable suspicion to justify the search of appellant, and (4) appellant did not voluntarily consent to the search of her belongings.
The principal issue presented by this case is whether the search and seizure of appellant during the "bus sweep" in question was permissible under Article I, § 8 of the Pennsylvania Constitution *fn1 and the Fourth Amendment to the United States Constitution. *fn2 As our Pennsylvania Supreme Court has recently reiterated, the protection against unreasonable searches and seizures afforded by the Pennsylvania Constitution is broader than that provided by the federal Constitution. Commonwealth v. Jackson, Pa. , A.2d (No. 30 E.D. Appeal Dkt. 96; filed July 23, 1997), citing Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991).
This Court has long emphasized that, in interpreting a provision of the Pennsylvania Constitution, we are not bound by the decisions of the United States Supreme Court which interpret similar (yet distinct) federal constitutional provisions. See Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983); Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989); Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S. Ct. 704, 62 L. Ed. 2d 668 (1980). Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S. Ct. 73, 38 L. Ed. 2d 44, on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S. Ct. 3172, 41 L. Ed. 2d 1139 (1974).
As Mr. Chief Justice Nix aptly stated in Sell, the federal constitution establishes certain minimum levels which are "equally applicable to the [analogous] state constitutional provision." Id. 504 Pa. at 63, 470 A.2d at 466, quoting Commonwealth v. Platou, 455 Pa. 258, 260 n.2, 312 A.2d 29, 31 n.2 (1973). However, each state has the power to provide broader standards, and go beyond the ...