Commonwealth v. Wilmington

729 A.2d 1160, 1999 Pa. Super. 66, 1999 Pa. Super. LEXIS 824

Opinions

McEWEN, President Judge.

¶ 1 This Court granted the petition for reargument filed by the Commonwealth in this case to consider whether the Pennsylvania Constitution prohibits the random stopping of a Greyhound bus at a toll plaza on a rural interstate to permit police officers to conduct a “drug interdiction investigation” in the absence of reasonable suspicion or probable cause to believe that an individual on the bus is transporting narcotics.

¶ 2 Our study, as well as our resolution of the competing concerns presented by this case — eradication of the deadly plague visited upon our society by illicit drugs and the preservation of the sacred freedoms guaranteed to us by the Pennsylvania Constitution — is guided by the admonition of our Supreme Court that

[t]he seriousness of the criminal activity under investigation, whether it is the sale of drugs or the commission of a violent crime, can never be used as justification for ignoring or abandoning the constitutional rights of every individual in this Commonwealth to be free from intrusions upon his or her personal liberty absent probable cause.

Commonwealth v. Rodriquez, 532 Pa. 62, 73, 614 A.2d 1378, 1383 (1992).

¶ 3 We conclude, as set forth hereinafter, that the Greyhound bus was seized by the officers when the driver pulled over at their request and that, in the absence of reasonable suspicion or probable cause, the random stopping of a bus to allow troopers to interrogate the passengers violates Article I, Section 8 of the Pennsylvania Constitution just as surely as the random stopping of automobiles by such troopers - solely for the purpose of questioning occupants of those automobiles as to their identities and itineraries, would violate Article I, Section 8 of the Pennsylvania Constitution. See: Commonwealth v. Sierra, 555 pa. 170, -, 723 A.2d 644, 646 (1999) (Opinion in Support of Affirmance); Commonwealth v. Blouse, 531 Pa. 167, 169, 611 A.2d 1177, 1178 (1992); Commonwealth v. Yashinski, 723 A.2d 1041, 1043 (Pa.Super.1998); Commonwealth v. Pacek, 456 Pa.Super. 578, 691 A.2d 466, 469-470 (1997); Commonwealth v. Zogby, 455 Pa.Super. 621, 689 A.2d 280, 282 (1997), appeal denied, 548 Pa. 658, 698 A.2d 67 (1997); Commonwealth v. Ziegelmeier, 454 Pa.Super. 330, 685 A.2d 559, 561-562 (1996); Commonwealth v. Trivitt, 437 Pa.Super. 432, 650 A.2d 104, 106 (1994); Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177, 181-182 (1992), appeal denied, 533 Pa. 598, 617 A.2d 1273 (1992).

¶ 4 The trial court, when deciding a motion to suppress, is required to conduct a hearing and make findings of fact and conclusions of law determining whether evidence was obtained in violation of a defendant’s rights. Commonwealth v. Graham, 554 Pa. 472, 475-477, 721 A.2d 1075, 1077 (1998); Commonwealth v. DeWitt, 530 Pa. 299, 302, 608 A.2d 1030, 1031 (1992); Pa.R.Crim.P. 323. While this Court in general, “[i]n reviewing a suppression court’s ruling [is] bound by those factual findings of the suppression court which are supported by the record”, Commonwealth v. Sierra, supra at -, 723 A.2d at 645 (Opinion in Support of Affir-mance) ¹, since the trial court in the instant case based its findings solely upon its review of the notes of testimony from the preliminary hearing conducted on December 26, 1996, before District Justice Eyer, “this Court is equally competent to form an opinion as to the facts from the evidence appearing in the record.” Commonwealth v. Jones, 457 Pa. 423, 431, 322 A.2d 119, 124 (1974), citing Stanko v. Males, 390 Pa. 281, 135 A.2d 392 (1957); Poelcher v. Poelcher, 366 Pa. 3, 76 A.2d 222 (1950). Accord: Butler County v. Brocker, 455 Pa. 343, 349 n. 8, 314 A.2d 265, 269 n. 8 (1974).

¶5 On December 11, 1996, Agent Ronald Paret of the Bureau of Narcotic Investigations of the Office of the Attorney General and Monroe County Detective Kirk Schwartz were standing at the toll booths located at the Delaware Water Gap Toll Plaza on Interstate 80 in Monroe County, for the purpose of randomly stopping commercial buses proceeding through the toll plaza as part of a “drug interdiction operation”.

¶6 Appellant was a passenger on a Greyhound bus which had left New York City and was en route to Cleveland, Ohio, when Detective Schwartz, as the bus stopped to pay the toll, asked the driver of the bus, Mr. Prather, if he and Agent Paret could board the bus and conduct an investigation. The driver agreed and was directed to pull the bus over onto the apron past the toll booths. The agents obtained and examined the tickets which had been collected by Mr. Prather, who testified at trial that:

A. Once I had been asked by Detective Schwartz if I minded pulling over, I told them we have drug enforcement agents who are going to get up on the bus and they are going to just routinely go through the bus, I don’t know, search it or whatever. I don’t know what they are going to - I could not tell them specifically what was going to happen.

Q. How did you tell them that?

A. On the P.A. system that we have on board the bus.

Q. Did you advise any passengers who didn’t want this experience that they could leave the bus?

A. No, I didn’t. (N.T. 15) (emphasis supplied).

Agent Paret testified at trial that “... when I boarded the bus, I identified myself using the public address system. I picked up the microphone, spoke to the passengers, identified myself. I identified Detective Schwartz as the other person on the bus with me. I told them we were on the bus to conduct a brief drug investigation at that time.” (N.T. 47)(emphasis supplied).

¶ 7 Rule 323(h) of the Pennsylvania Rules of Criminal Procedure places the burden of production as well as the burden of persuasion on the Commonwealth. Commonwealth v. Hamilton, 543 Pa. 612, 614, 673 A.2d 915, 916 (1996); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 144, 239 A.2d 426, 428 (1968). The only evidence concerning the seizure of the bus offered by the Commonwealth was the following portion of the December 26, 1996, preliminary hearing testimony provided by Agent Paret, the sole witness presented at that hearing:

Q. What did you do at approximately 4:15 p.m. that day [December 11, 1996]?

A. At approximately 4:15 p.m., myself, along with County Detective Kirk Schwartz, had occasion to board a Greyhound Bus at that time.

Q. Upon boarding the bus, what did you do?

A. Upon boarding the bus, I made an announcement on the intercom system of the bus. I identified myself as a narcotics agent. I also identified Kirk Schwartz as a county detective. We were both wearing jackets that also identified ourselves. Subsequently, Detective Schwartz went down the aisle ahead of me. He went into the bus bathroom, and I began speaking with the passengers on the bus.

¶ 8 The trial court, based solely upon its review of the foregoing transcript from the preliminary hearing, then made the following findings of fact:

1. On December 11, 1996, Agent Ronald Paret, a Narcotics Investigator from the Attorney General’s Office, and Kirk Schwartz, the County Detective, were involved in drug interdiction surveillance at the Delaware Water Gap Toll Bridge in the Borough of Delaware Water Gap, Monroe County, Pennsylvania.

2. Agent Paret approached the driver of a Greyhound Bus in route from New York to Cleveland, Ohio, and identified himself as a narcotics investigator and asked the bus driver if he could board the bus. The driver consented.

3. When the officers boarded the bus, they attempted to match passengers with carry-on luggage in the overhead luggage racks.

4. Agent Paret asked the defendant if he had any luggage, and the defendant pointed to a white plastic bag on the floor. Agent Paret asked him if he could look at it. The defendant consented. In it were a new pair of blue, white and silver Asics sneakers, size nine.

5. A Saks Fifth Avenue shopping bag, which was located in the overhead rack directly opposite to where the defendant was seated on the bus, was not identified by any of the passengers as belonging to them. When the bag was unclaimed, one of the officers held it up for all the passengers to see and asked if it belonged to anyone. No one responded, including the defendant.

6. Detective Schwartz removed the bag from the bus and searched it. The search disclosed a package of suspected cocaine and a pair of blue jeans in which part of a check, including a Social Security number, was found. The cocaine was found in an Asics shoe box. The shoe box had written language on it indicating that it once held size nine, blue, white and silver sneakers.

¶ 9 The trial court then concluded, based upon what we view as a misreading of Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), that:

... In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the United States Supreme Court gave its stamp of approval to such practices where bus transportation is involved. Recognizing that the decision when and where to stop a bus is within the sole control of the bus driver and not the passenger, the Supreme Court concluded that any resulting confinement of a passenger is the natural result of his decision to take the bus and not necessarily a result of coercive police conduct. Applying that rationale to the facts in the case at bar, we conclude that the defendant was not seized within the meaning of the Fourth Amendment.

¶ 10 Thus, while the trial court found that Agent Paret had “detain[ed] the bus on which the defendant was a passenger and examin[ed] the luggage”, the trial court, as a result of its misinterpretation of the holding in Bostick, found that there had been no violation of the Fourth Amendment.² The trial court also found that

The warrantless search of the bag abandoned on the bus did not constitute an unlawful search since the defendant did not have a reasonable expectation of privacy at the time of the search. Abel v. The United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Commonwealth v. Windell, 365 Pa.Super. 392, 529 A.2d [1115](1987).[³]

¶ 11 Contrary to the belief of the trial court⁴, the United States Supreme Court in Florida v. Bostick, supra, did not authorize seizures of buses and their occupants in the absence of reasonable suspicion or probable cause. Rather, the Supreme Court granted certiorari to review a decision of the Florida Supreme Court, a decision purportedly based on the Fourth Amendment to the United States Constitution, which had adopted a per se rule that “‘an impermissible seizure result[s] when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers’ luggage.’ ” Florida v. Bostick, supra, 501 U.S. at 433, 111 S.Ct. 2382, quoting Bostick v. State, 554 So.2d 1153, 1154 (Fla.1989)(emphasis supplied).

¶ 12 The United States Supreme Court reversed, holding only that a per se rule was inconsistent with Fourth Amendment jurisprudence. Importantly, while expressly declining to decide whether a seizure had actually occurred, 501 U.S. at 437, 111 S.Ct. 2382, the Court noted that the appropriate inquiry for determining whether a seizure had occurred in violation of the Fourth Amendment was “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” 501 U.S. at 436, 111 S.Ct. 2382. Thus, Bostick does not stand for the proposition that seizures cannot occur within the confines of a bus where the driver has given an agent permission to commandeer the vehicle. Rather, Bostick stands for the well-settled proposition that, in determining whether a seizure has occurred for purposes of a Fourth Amendment analysis under federal law, all of the circumstances attendant to the encounter must be examined.

¶ 13 Whether the stop of the bus by Agent Paret is analyzed under those opinions discussing the constitutional constraints imposed by the Pennsylvania Constitution upon roadblocks, or analyzed under those cases determining the constitutionality of “interactions” between citizens and government agents in airport terminals and railway stations, the decisions of our Supreme Court⁵ firmly establish that there was a “seizure” of the bus in the instant case, and that that seizure was a violation of the constitutional rights guaranteed to the citizens of this Commonwealth by Article I, Section 8 of the Pennsylvania Constitution, rendering the evidence seized subject to suppression.

“When [a] police [officer] stop[s] a vehicle in this Commonwealth for investigatory purposes, the vehicle, and its occupants, are considered ‘seized’ and this seizure is subject to constitutional constraints.” Commomvealth v. Knotts, 444 Pa.Super. 60, 663 A.2d 216, 218 (1995) (citation omitted).

Commonwealth v. Bowersox, 450 Pa.Super. 176, 675 A.2d 718, 720-721 (1996). Accord: Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa.Super.1998).

¶ 14 Our Supreme Court has defined the term “seizure” for purposes of analyzing a challenge under Article I, Section 8, much differently than the United States Supreme Court has defined “seizure” for purposes of Fourth Amendment analysis. See: Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265 (1998). Our Supreme Court, in an opinion by the eminent Justice Ralph J. Cappy⁶ in Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996), addressed, in three consolidated cases, the issue of whether contraband, discarded by an individual fleeing from a police officer, was the fruit of an illegal “seizure” where the officer possessed neither probable cause nor reasonable suspicion to stop the individual. The Court acknowledged that there had been no seizure under a Fourth Amendment analysis, citing California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), but held that:

... this Court has traditionally regarded Article I, Section 8 as providing different, and broader, protections than its federal counterpart.

In Edmunds, this Court thoroughly examined the history of Article I, Section 8, and noted that this constitutional provision had its origin prior to the Fourth Amendment, in Clause 10 of the Original Constitution of 1776. The Court also recognized that the modern version of Article I, Section 8 has remained untouched for over 200 years, and examined this significance:

[T]he survival of the language now employed in Article I, Section 8 through over 200 years of profound change in other areas demonstrates that the paramount concern for privacy first adopted as part of our organic law in 1776 continues to enjoy the mandate of the people of this Commonwealth.

* * * *

... “[A]s this Court has stated repeatedly in interpreting Article I, Section 8, that provision is meant to embody a strong notion of privacy, carefully safeguarded in this Commonwealth for the past two centuries.” Id. The Court then concluded that the purpose of the exclusionary rule as developed in Pennsylvania was not solely to deter police conduct, as the United States Supreme Court had interpreted it, but rather was “unshakably linked to a right of privacy in this Commonwealth.” 526 Pa. at 397, 586 A.2d at 898 [emphasis added].

* * * *

... the law of this Commonwealth has always maintained a.strong preference for the rights of the individual in the face of coercive state action. Through our decisions in Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977), [cert. denied, 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1978)], and Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979), this Court, both in coordination with and independent of the federal courts, has set forth the standards to be applied in determining whether an individual is seized and whether the seizure is lawful; and if it is not lawful, whether any evidence obtained must be suppressed.

... In Jones, this Court adopted an objective standard for determining what amount of force constitutes the initiation of a Terry stop: “whether a reasonable [person] innocent of any crime, would have thought he was being restrained had he been in the defendant’s shoes.” 474 Pa. at 373, 378 A.2d at 840. This case, which preceded the United States Supreme Court’s decision in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), was a precursor to the so-called “Mendenhall ” test posited by the United States Supreme Court: “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” 446 U.S. at 555, 100 S.Ct. at 1877, 64 L.Ed.2d at 509.

The Jones/Mendenhall standard has since been consistently followed in Pennsylvania in determining whether the conduct of the police amounts to a seizure or whether there is simply a mere encounter between citizen and police officer. See, e.g., Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983); Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989); Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984). Commonwealth v. Carroll, 427 Pa.Super. 1, 628 A.2d 398 (1993)(Johnson, J., dissenting). See also Commonwealth v. Lewis, 535 Pa. 501, 636 A.2d 619 (1994)....

* * * *

Thus, there exists clear precedent in Pennsylvania defining the appropriate standards to be used when considering whether an individual has been seized. The long-standing definition of what constitutes a seizure applied by the Courts of this Commonwealth cannot be ignored, particularly when viewed in tandem with this Court’s recognition of the privacy rights embodied in Article I, Section 8.

* * * *

Less than three years ago, this Court, in Commonwealth v. Rodriquez, swpra, rejected the contention that the goal of curtailing the drug trade permits the expansion of police intrusion without the constitutional justification of reasonable suspicion or probable cause:

We emphatically reject the Superior Court’s “end justifies the means” analysis. By focusing its attention only upon the serious ills inflicted upon society by illegal narcotics, the Superi- or Court failed to recognize and respond to necessary constitutional constraints on excessive police conduct. The seriousness of criminal activity under investigation, whether it is the sale of drugs or the commission of a violent crime, can never be used as justification for ignoring or abandoning the constitutional right of every individual in this Commonwealth to be free from intrusions upon his or her personal liberty absent probable cause.

Accordingly, we decline to adopt the rationale of the Superior Court or the arguments offered by the Commonwealth, and thus, we decline to expand the appropriate narrow “reasonable suspicion” exception to probable cause already established by the United States Supreme Court in Terry v. Ohio and by this Court in Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).

532 Pa. at 73, 614 A.2d at 1383. As we declined to expand the reasonable suspicion exception in Rodriquez as contrary to the protections afforded by Article I, Section 8, so too does this Court decline to narrow the long-recognized definition of seizure by adopting the Hodari D. definition.

Thus, we find that there are ample policy reasons to'reject the decision of the United States Supreme Court in Hodari D. as being inconsistent with the constitutional protections afforded under Article I, Section 8 of the Pennsylvania Constitution. As aptly put by Justices Stevens and Marshall, “[i]f carried to its logical conclusion, it will encourage unlawful displays of force that will frighten countless citizens into surrendering whatever privacy rights they may still have.” 499 U.S. at 646-647, 111 S.Ct. at 1561, 113 L.Ed.2d at 710 (Stevens, J., dissenting).

Commonwealth v. Matos, supra at 453-463, 672 A.2d at 772-776 (footnote omitted).

¶ 15 Our Supreme Court, in Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995), reiterated the prohibition against the random stopping of vehicles on the highways of this Commonwealth:

In Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), this Court addressed the issue of whether a police officer could stop the driver of an automobile without having observed that driver violate any of the provisions of the Vehicle Code. We first acknowledged that the stopping of a vehicle and the detainment of its passengers constitutes a seizure and therefore implicates the Fourth Amendment ... [and] held that “before the government may single out one automobile to stop, there must be specific facts justifying this intrusion. To hold otherwise would be to give the police absolute, unreviewable discretion and authority to intrude into an individual’s life for no cause whatsoever.” Id.

* * * *

This Court [in Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975)] reversed the defendant’s conviction on the basis that the evidence obtained from the search of the vehicle should have been suppressed because “the Commonwealth’s power to regulate vehicular traffic within its borders did not supply an adequate justification for the intrusion upon privacy occasioned by the stop.” Id. at 59, 331 A.2d at 417. In so holding, we reaffirmed the rule set forth in Swanger:

If the alleged basis of a vehicular stop is to permit a determination whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is incumbent upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code.

Id. at 58-59, 331 A.2d at 416-17 (citing Commonwealth v. Swanger, 453 Pa. 107, 115, 307 A.2d 875, 879 (1973))(footnote omitted). .

* * * *

When previously faced with these two competing interests, we held “that a stop of a single vehicle is unreasonable where there is no outward sign the vehicle or the operator are in violation of The Vehicle Code.... [B]efore the government may single out one automobile to stop, there must be specific facts justifying this intrusion.” Commonwealth v. Swanger, 453 Pa. at 112, 307 A.2d at 878.

Commonwealth v. Whitmyer, supra at 547-553, 668 A.2d at 1115-1117. See also: Commonwealth v. DeWitt, supra at 306-307, 608 A.2d at 1034; Commonwealth v. Scavello, 703 A.2d 36, 38 (Pa.Super.1997), appeal granted (October 30, 1998),

¶ 16 Recently, this Court, in Commonwealth v. Yashinski, supra, 723 A.2d at 1042-1043, concluded that the defendant had been seized, in violation of Article I, Section 8, when:

... Trooper Gibson and his partner systematically engaged the drivers entering the turnpike in conversation. This brief encounter, at least in the case of our appellant, and presumably with most, if not all, of the other drivers entering the turnpike, provided the Trooper sufficient enough contact with the appellant to presumptively determine that he might be operating the vehicle under the influence of alcohol. The lower court may have been inclined to believe the rather incredulous explanation of Trooper Gibson that, in systematically engaging drivers in conversation, he and his partner were performing “public relations” activities for the Pennsylvania State Police as opposed to seeking drunk drivers. Nevertheless, in our opinion such a course of conduct describes a de facto roadblock regardless of intent.

A “roadblock” has been characterized as a “systematic program of checking vehicles or drivers.” 75 Pa.C.S. § 6308(b). Further, our Supreme Court, in discussing the case of United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074 [49 L.Ed.2d 1116] (1976), used the following language to describe conduct which was considered a roadblock in that case, the “routine stopping of a vehicle for brief questioning of its occupants .... ” Commonwealth v. Tarbert, 517 Pa. 277, 287, 535 A.2d 1035, 1040 (1987). Regardless of intent and/or the presence of reasonable suspicion, or the lack thereof, this is precisely what Trooper Gibson was engaged in.

As mentioned earlier, Gibson testified that as appellant stopped to take a ticket he asked him “how he was doing, or where are you coming from.” Gibson further indicated that appellant wasn’t the only individual he engaged in this fashion, rather Gibson stated “I speak to just about everyone that goes through.” As such, Gibson and his partner were engaged in a process of the “routine stopping of a vehicle for brief questioning of its occupants.” The Commonwealth and the lower court are quick to point out that Trooper Gibson never ordered appellant to stop and never indicated that he was not free to leave. However, in our opinion this is immaterial.

The definition of a roadblock does not state that the systematic checking must be done under a threat of force or some other form of compulsion. To the extent the questioning of drivers coming through the tollbooths effectively provided brief contact with most of them it would serve the same purpose. Further, this argument ignores the reality of the circumstances. The overwhelming majority of lay people do not feel free to simply ignore a police officer’s questions and continue driving along. We recognized a similar concept in Commonwealth v. Zogby, [455 Pa.Super. 621] 689 A.2d 280 (1997), where we stated “[t]he reality of the matter is that when a police officer requests a civilian to do something, even something as simple as ‘move along,’ it is most often perceived as a command that will be met with an unpleasant response if disobeyed.” Id., 689 A.2d at 282.

No less an authority than Justice Stevens of the United States Supreme Court has stated “[r]epeated decisions by ordinary citizens to surrender that interest [the right to refuse consent to a search] cannot be satisfactorily explained on any hypothesis other than an assumption that they believed they had a legal duty to do so.” Ohio v. Robinette, 519 U.S. 33, 48, 117 S.Ct. 417, 425 [136 L.Ed.2d 347] (1996)(Dissenting Opinion). These observations demonstrate that a police officer need not officially “stop” a vehicle to effectuate the investigative purpose, it is enough if they ask a question of a motorist because, except for the brashest of motorists, the ordinary motorist will feel compelled to stop and respond.

Commonwealth v. Yashinski, supra at 1043.

¶ 17 While the United States Supreme Court in a plurality decision in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), concluded that an encounter between a citizen and a DEA agent in an airport terminal had not constituted an investigatory detention under federal law, the Court noted that encounters between officers walking upon streets or in the public concourses of air, rail and bus terminals are inherently different from encounters between government agents initiated by the stop of a vehicle and its passengers:

The Court’s decisions involving investigatory stops of automobiles do not point in any different direction. In United States v. Brignoni-Ponce, 422 U.S. 873 [95 S.Ct. 2574, 45 L.Ed.2d 607], the Court held that a roving patrol of law enforcement officers could stop motorists in the general area of an international border for brief inquiry into their residence status only if the officers reasonably suspected that the vehicle might contain aliens who were illegally in the country. Id., at 881-882 [95 S.Ct. 2574], The Government did not contend in that case that the persons whose automobiles were detained were not seized. Indeed, the Government acknowledged that the occupants of a detained vehicle were required to respond to the officers’ questions and on some occasions to produce documents evidencing their eligibility to be in the United States. Id., at 880 [95 S.Ct. 2574]. Moreover, stopping or diverting an automobile in transit, with the attendant opportunity for a visual inspection of areas of the passenger compartment not otherwise observable, is materially more intrusive than a question put to a passing pedestrian, and the fact that the former amounts to a seizure tells very little about the constitutional status of the latter. See also Delaware v. Prouse, 440 U.S. 648 [99 S.Ct. 1391, 59 L.Ed.2d 660]; United States v. Martinez-Fuerte, 428 U.S. at 556-559 [96 S.Ct. 3074],

United States v. Mendenhall, supra, 446 U.S. at 556-557, 100 S.Ct. 1870 (emphasis added).

¶ 18 Our esteemed colleagues of the- dissent and the learned trial court reason that the cooperation of Mr. Prather, the bus driver, obviates the need to analyze the stop of the bus under the substantial body of case law⁷ prohibiting the random stopping of vehicles, as the stop was consensual. While we refuse to find that Mr. Prather could provide a valid consent for the unconstitutional seizure of any passenger on his bus, the seizure in this case cannot pass constitutional muster even when we examine — in isolation — only the interaction between Agent Paret and appellant after the seizure of the bus had been completed by its removal to an area alongside the toll plaza.

¶ 19 Superintendent Tilwick of the Delaware River Toll Bridge Commission testified at trial that no one could leave the bus and walk or hitchhike from the area where it had been directed by the agents, since pedestrians are prohibited upon Route 80.⁸ Thus the grounds usually urged upon this Court by the Commonwealth in support of its claim that there was no seizure, ie., that the suspect was free to decline to answer or to walk away⁹, is not available in this case and precludes any finding other than that “officer [Paret] by means of ... show of authority, has ... restrained the liberty of [appellant] requiring that we conclude that a ‘seizure’ has occurred”. Bostick, 501 U.S. at 434, 111 S.Ct. 2382. See also: Commonwealth v. Matos, supra at 457, 672 A.2d 769, 672 A.2d at 774. Moreover, in light of the announcements made by the agent and the driver after pulling the bus over, no “reasonable man, innocent of any crime, would have thought he was [not] being restrained.” Commonwealth v. Jones, supra at 373, 378 A.2d at 840, quoting United States v. McKethan, 247 F.Supp. 324, 328 (D.D.C.1965)(footnote omitted).

¶ 20 The venerable Justice Stephen A. Zappala, writing for the majority¹⁰ in Commonwealth v. Lewis, supra, specifically rejected this Court’s prior determination that there had not been an investigatory stop of the defendant in a public railway terminal, and reminded this Court that:

... “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Terry v. Ohio, supra, 392 U.S. at 8, 88 S.Ct. at 1873, citing Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). The Fourth Amendment’s prohibition of searches and seizures that are unsupported by objective justification governs all seizures of the person, including seizures that involve only a brief detention.

Commonwealth v. Lewis, supra at 507, 636 A.2d at 622. The Lewis Court analyzed the decision of the United States Supreme Court in Bostick and found, under the totality of the circumstances, that the encounter in the railway station¹¹ between Lewis and the officers had constituted an investigatory stop and not a mere encounter:

In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the Court addressed the issue whether the Fourth Amendment permits police officers to approach individuals on a bus to ask them questions and to request consent to search their luggage. As part of a drug interdiction program, the Sheriffs Department of Broward County, Florida, routinely boarded buses at scheduled stops and asked passengers for permission to search their luggage. Two officers boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. The officers singled out Terrance Bostick, concededly without any articulable suspicion, and asked to inspect his ticket and identification. The ticket matched Bostick’s identification. The officers then conducted a search of his suitcase and uncovered cocaine. There was a dispute as to whether Bostick consented to the search. Bostick was arrested and charged with trafficking in cocaine.

The trial court denied his suppression motion. The Florida District Court of Appeal affirmed and certified the question to the Florida Supreme Court. The Florida Supreme Court held that an impermissible seizure occurs when police initiate a drug search on buses during scheduled stops and question passengers without articulable reasons for doing so. The U.S. Supreme Court granted certiorari to determine whether the Florida Supreme Court’s per se rule was consistent with its Fourth Amendment jurisprudence.

The U.S. Supreme Court held that the Florida Supreme Court erred in adopting a per se rule that every police encounter on a bus is a seizure. The Court held that a seizure does not occur simply because a police officer approaches an individual for the purpose of asking a few questions so long as a reasonable person would feel free to ignore the police and go about his business. Encounters of that nature are consensual and no reasonable suspicion is required. The Court expressly refused to decide whether or not a seizure of Bostick had occurred because the trial court had made no express findings of fact and the Florida Supreme Court’s decision rested entirely on the fact that the encounter took place on a bus. The Court remanded the matter for further proceedings consistent with its opinion. The U.S. Supreme Court articulated the following test to determine whether a particular encounter constitutes a seizure: “[A] court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ request or otherwise terminate the encounter.” 501 U.S. at 439, 111 S.Ct. at 2389. Applying the test to the facts of the instant case, we find that under the totality of the circumstances, the police conduct would have communicated to a reasonable person that the person was not free to leave. It is not our intention to single out the fact that the Appellants were confronted by four police officers as dis-positive of our inquiry, but the nature of the confrontation demonstrated a show of authority which constituted a restraint of the Appellants’ liberty. We hold that a seizure occurred in this case.

Commonwealth v. Lewis, supra at 508-509, 636 A.2d at 623 (emphasis added).

¶ 21 A majority of this Court en banc in Commonwealth v. Hoak, 700 A.2d 1263 (Pa.Super.1997), appeal granted, 555 Pa. 717, 724 A.2d 933 (1998), held that:

... 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 Bos-tick, 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, 519 U.S. at 38-40, 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).

Commonwealth v. Hoak, supra, 700 A.2d at 1268. The majority in Hoak held that Hoak, who had been told he was free to leave after a traffic stop, was no longer “seized” for purposes of Fourth Amendment jurisprudence since his papers had been returned to him and he had been informed that he was free to leave prior to the officer’s request.

... This court has held [motorists] 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....

* * * *

... 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 license, Lopez was plainly not free to leave; indeed, he could not do so legally.

* * * *

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.

Commonwealth v. Hoak, supra, 700 A.2d at 1267, 1269, 1270 (emphasis in original)(footnote omitted).

¶ 22 In a closely related case, an equally divided Supreme Court in Commonwealth v. Sierra, supra, affirmed the suppression of evidence seized pursuant to a consent to search given after the driver had been given a warning and all of his documentation had been returned.

¶23 The Supreme Court had granted allocatur in Sierra to examine three issues: “(1) whether Officer Roehm’s continued questioning of the driver regarding the contents of the ear constituted an investigative detention; (2) if so, whether the detention was justified; and (3) if there was an illegal detention, whether the driver’s subsequent consent to search the vehicle and the pat-down search of appellee were tainted by the illegal detention.” Commonwealth v. Sierra, supra at -, 723 A.2d. at 645-646. Justice Nigro in his Opinion in Support of Affirmance, held:

An investigative detention occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. Commonwealth v. Lopez, 415 Pa.Super. 252, 258, 609 A.2d 177, 180, appeal denied, 583 Pa. 598, 617 A.2d 1278 (1992). See also Commonwealth v. Lewis, 535 Pa. 501, 636 A.2d 619 (1994). Such a detention constitutes a seizure of a person and thus activates the protections of the Fourth Amendment and the requirements of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Lopez, 415 Pa.Super. at 258-59, 609 A.2d at 180; Lewis, 535 Pa. at 507-08, 636 A.2d at 622-23. In order to determine whether a particular encounter constitutes a seizure/detention, “a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ request or otherwise terminate the encounter.” Lewis, 535 Pa. at 509, 636 A.2d at 623 (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)).

In the present case, the Commonwealth argues that the officer’s questioning cannot be characterized as an investigative detention because Officer Roehm had returned the driver’s license and registration and had issued a warning for speeding prior to asking any questions of the driver, because there was no show of physical force or authority over the driver, and because the question asked by Officer Roehm was not a request to search the vehicle.

Given the circumstances surrounding the encounter, we cannot agree that the occupants should have known that they could depart once the officer returned the driver’s documentation and issued the warning....

Commonwealth v. Sierra, supra at -, 723 A.2d at 646.

¶ 24 In light of the Supreme Court’s Opinions in Sierra, and of, as well, the unanimous en banc view of this Court in Hoak that a valid consent to search cannot be supplied by a motorist who has not been told he may leave and whose documents have not been returned by the officer, it cannot reasonably be argued that a passenger on a bus, seized while en route on an interstate highway where pedestrian traffic is prohibited, who has been informed by the driver of the bus (as he leaves the bus to the sole control of the agents) that the bus has been temporarily placed at the disposal of “drug enforcement agents who are going to get up on the bus and they are going to just routinely go through the bus ... search it or whatever”, could reasonably believe he was free to decline the agent’s demands for his ticket, identification, itinerary, and luggage.

¶ 25 The constitutional requirement of a reasonable articulable suspicion to support an investigative seizure “ ‘protects a precious right - hard earned and easily lost - to be free of arbitrary police intrusions on individual privacy and free movement.’” Commonwealth v. Bennett, 412 Pa.Super. 603, 604 A.2d 276, 286 (1992), quoting United States v. Gooding, 695 F.2d 78, 83-84 (4th Cir.1982). In the absence of such reasonable suspicion, the seizure in the instant case was a violation of the Pennsylvania Constitution requiring suppression of all evidence seized as a result thereof.¹²

¶ 26 Judgment of sentence vacated. Case remanded. Jurisdiction relinquished.

¶ 27 EAKIN, J., FILES A DISSENTING OPINION, JOINED BY JOYCE, J., AND LALLY-GREEN, J.

¶ 28 STEVENS, J., FILES A DISSENTING OPINION, JOINED BY EAKIN, J., AND LALLY-GREEN, J.

1 . Accord: Commonwealth v. Lewis, 535 Pa. 501, 504, 636 A.2d 619, 621 (1994); Commonwealth v. Slaton, 530 Pa. 207, 208, 608 A.2d 5, 5 (1992); Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

2 . Although raised by appellant, the trial court did not address the claimed violation of Article I, Section 8 of the Pennsylvania Constitution.

3 . Commonwealth v. Windell, supra, has no application to the instant case as it did not involve any police conduct, much less illegal police conduct, prior to or related to the abandonment. See: Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996); Commonwealth v. Everett, 546 Pa. 430, 685 A.2d 993 (1996).

4 . Many thoughtful and eloquently reasoned opinions of our Supreme Court have established that the provisions of Article I, Section 8 of our State Constitution, which predate the Fourth Amendment of the United States Constitution, bestow substantially greater liberty and privacy rights upon the citizens of this Commonwealth than does its federal counterpart. See: Commonwealth v. Hawkins, 553 Pa. 76, 84-86, 718 A.2d 265, 269 (1998); Commonwealth v. Matos, 543 Pa. 449, 455, 672 A.2d 769, 772 (1996); Commonwealth v. White, 543 Pa. 45, 56, 669 A.2d 896, 902 (1995); Commonwealth v. Smith, 532 Pa. 177, 186, 615 A.2d 321, 325 (1992); Commonwealth v. Edmunds, 526 Pa. 374, 388, 586 A.2d 887, 894 (1991); Commonwealth v. Melilli, 521 Pa. 405, 412, 555 A.2d 1254, 1258 (1989); Commonwealth v. Johnston, 515 Pa. 454, 467, 530 A.2d 74, 80 (1987); Commonwealth v. Sell, 504 Pa. 46, 63-64, 470 A.2d 457, 467 (1983); Commonwealth v. DeJohn, 486 Pa. 32, 43, 403 A.2d 1283, 1288 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980).

5 . Our Supreme Court, cognizant of its sacred trust, has repeatedly rejected attempts by this Court to override, in the name of the war against crime, the privacy rights guaranteed to the citizens of this Commonwealth by Article I, Section 8. See, e.g.: Commonwealth v. Hawkins, 553 Pa. 76, 84-86, 718 A.2d 265, 269 (1998)(“The polestar of the expanded protections afforded by Article I, Section 8, which distinguishes it from its federal counterpart, is its emphasis upon personal privacy interests.”); Commonwealth v. Rodriquez, supra at 71, 614 A.2d at 1382 (Supreme Court rejected as unconstitutional under Article I, Section 8 the Superior Court’s theory of “justifiable detention”); Commonwealth v. Lovette, 498 Pa. 665, 676, 450 A.2d 975, 980 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983)(Supreme Court rejects "investigative purposes” theory of Commonwealth, noting that "[t]he instant factual situation is also illustrative of the uncertainties attendant to any attempt to expand the Terry exception and reinforces the wisdom of scrupulously adhering to the narrow scope of the exception.”)

6 . Only Castille, J., dissented.

7 . The United States Supreme Court in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), held that a roving patrol of law enforcement officers could not stop motorists in the general area of an international border for brief inquiry into their residence status if the officers did not have a reasonable, articulable suspicion that the vehicle might contain aliens who were illegally in the country. The Court held: "it is not 'reasonable' under the Fourth Amendment to make such stops on a random basis.... For the same reasons that the Fourth Amendment forbids stopping vehicles at random to inquire if they are carrying aliens who are illegally in the country, it also forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.” 422 U.S. at 883-884, 95 S.Ct. 2574. Similarly, the Supreme Court in Reid v. Georgia, 448 U.S. 438, 439, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), reversed the conviction of an airline passenger where the agent asked two men outside the airport terminal "if they would agree to return to the terminal and to consent to a search of their persons and their shoulder bags. The agent testified that the petitioner nodded his head affirmatively, and that the other responded, 'Yeah, okay.’ As the three of them entered the terminal, however, the petitioner began to run and before he was apprehended, abandoned his shoulder bag. The bag, when recovered, was found to contain cocaine.” Reid v. Georgia, supra. The Reid Court held:

The Fourth and Fourteenth Amendments' prohibition of searches and seizures that are not supported by some objective justification governs all seizures of the person, "including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721 [89 S.Ct. 1394, 22 L.Ed.2d 676] (1969); Terry v. Ohio, 392 U.S. 1, 16-19 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968).” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). While the Court has recognized that in some circumstances a person may be detained briefly, without probable cause to arrest him, any curtailment of a person’s liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity. See Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Brig-noni-Ponce, supra; Adams v. Williams, 407 U.S. 143, 146-149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, supra.

Reid v. Georgia, 448 U.S. at 440, 100 S.Ct. 2752 (emphasis supplied).

8 . This may provide an explanation for the move by officer Paret from the former practice of boarding buses during scheduled stops and layovers. Commonwealth v. Holt, 711 A.2d 1011 (Pa.Super.1998); Commonwealth v. Vasquez, 703 A.2d 25 (Pa.Super.1997); Commonwealth v. Wright, 448 Pa.Super. 621, 672 A.2d 826 (1996).

9 . As our learned colleague, Judge John G. Brosky, has astutely reiterated:

... it must be remembered that a police officer is an authority figure and that an officer’s authority is commonly reinforced when encountering a 'suspect.' For instance, if a driver is stopped under suspicion of a simple traffic violation the driver may be asked for a driver’s license and registration, or may be asked to step out of the vehicle. These requests are not postured in such a way as to suggest one is given a real choice to comply or not. As stated by the Supreme Court of Ohio, '[m]ost people believe that they are validly in a police officer's custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him.’ State v. Robinette, 73 Ohio St.3d 650, 655, 653 N.E.2d 695, 698 (1995). Reversed on federal constitutional grounds, Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).

Commonwealth v. Zogby, supra, 689 A.2d at 282 (footnote omitted).

10 . Justices Montemuro and Papadakos agreed with the conclusion of the majority that a seizure had occurred, but disagreed with the finding that there was no reasonable suspicion to justify the investigatory stop.

11 .An Amtrak ticket agent had advised an Amtrak police officer that two black men, fitting a drug courier profile, who had previously purchased round trip tickets to New York with cash, had again purchased tickets and ‘‘had a bundle of money and ... no luggage.” The officers observed the men as they awaited their train and decided to meet the train on its return and to approach the men at that time:

When the Appellants returned, they were confronted by four officers - Officer Ciu-pinski and his partner, Officer Crandall, Detective Holland and his partner. Detective Arnold. Officer Ciupinski and Detective Holland stood side by side. Their partners followed behind them to act as backup. None of the officers were in uniform. The officers identified themselves and informed the appellants that they were “working narcotics and doing an interdiction program checking for couriers bringing drugs back from New York.”

The officers asked whether the Appellants would mind speaking with them. The Appellants then backed away and the four officers followed. They continued to back away for five to ten feet until they were backed up to a wall with benches in front. They remained standing until backed up to the benches.

Commonwealth v. Lewis, supra at 504-508, 636 A.2d at 621-622.

12 . One can but hope that further appellate review of the issues raised by this appeal will effect the adoption of the insightful proposal of Justice Russell M. Nigro that police officers be required to advise travelers as follows:

We are police officers investigating drug trafficking. We approached you on a purely random basis and would like to ask you some questions. You have a legal right to decline our requests, a right to refuse to cooperate, and you are free to leave. If you choose not to leave and to comply with our requests, anything revealed through those inquires may be used against you in legal proceedings. Furthermore, if you agree to cooperate at the outset, you may still refuse at any time to cooperate further; you may end the inquiry and leave. Do you understand that you are under no obligation to comply with our requests at this time?

Commonwealth v. Boswell, 554 Pa. 275, 292 n. 1, 721 A.2d 336, 344 n. 1 (1998)(Opinion in Support of Reversal). Such a statement should, of course, be read from a card so as to enhance the credibility of the transit police that the full statement was recited to the accused. The transit police will likely urge that imposition of such a requirement will inhibit their effort and impede their march. This assertion echoes, of course, the dire predictions of law enforcement authorities when the Miranda warnings became a requirement, but few today would dispute that our Constitutions have been well served by those warnings. It merits mention that the requirement of such a statement by the transit police would not simply prevent the erosion of our individual liberties but would, as well, diminish the ever increasing inventory of suppression cases which burden our judicial system. Nor do we address what some characterize as the distressing inclination of the transit police to depict such bus encounters as a jolly holiday with Mary Poppins, and even reshape their recollection of events of the encounter so as to thwart the suppression effort.