In the Interest of Jermaine

582 A.2d 1058, 399 Pa. Super. 503, 1990 Pa. Super. LEXIS 3049

• Court: Supreme Court of Pennsylvania
• Decided: October 22, 1990
• Docket: 1493
• Status: Published

Opinions

WIEAND, Judge:

Where a police officer, without show of force, approaches a juvenile in a public railroad station and asks her questions and she, without coercion, consents to a search of the bag which she is carrying, are the drugs found in her bag subject to suppression as the fruits of unlawful police conduct? The trial court held that the juvenile, because of her youth, “was not of an age where consent was freely given” and suppressed the drugs found in her bag. After careful review, we reverse.

In reviewing an appeal taken by the Commonwealth from an order suppressing evidence,

we must consider only the evidence of the defendant’s witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court’s findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.

Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988). See also: Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985); Commonwealth v. Elliott, 376 Pa.Super. 536, 543, 546 A.2d 654, 657 (1988).

The only testimony at the suppression hearing was elicited from Ronald Bason, an Amtrak Police Officer. He said that on February 8, 1989, at or about 4:25 p.m., he had received information from Sergeant Ulrach, an Amtrak Narcotics Officer at Penn Station, in New York City, that a young female suspected of carrying narcotics, had boarded a train bound for Philadelphia’s 30th Street Station. The suspect was described as “a black female, approximately eighteen (18) to twenty-three (23) years old, one hundred twenty (120) pounds, 5'7", black medium length kinky hair, wearing a blue jean jacket, blue jean coat, black sneakers[,j ... a brown muslim type cap, carrying a black shoulder bag, and a white paper bag.” The basis for Ulrach’s suspicion was repeated by Bason as follows:

Officer Ulrach relayed to me he observed this individual at Penn Station, New York purchase a one-way ticket to 30th Street with cash. This individual then waited for the second call of the train before boarding.

Officer Ulrach told me this individual appeared to be nervous and concerned with his presence when she appeared to notice him standing there.

This individual then got up and walked to the train with Officer Ulrach following behind. As she was walking, she constantly kept looking over her shoulder at Officer Ulrach until she boarded the train. Upon sitting herself in the train, Officer Ulrach walked through the same car of the train which she was in. She remained in constant contact, eye contact, with him. Officer Ulrach exited the train and stood on the platform and positioned himself to her rear.

At that time, he observed her make a noticeable effort to keep eye contact with him.

When the train arrived at the 30th Street Station at 5:09 p.m., Bason, who was in plain clothes, was able to identify the suspect as she walked through the concourse. She was constantly looking around her and appeared to be very nervous. As she approached the Market Street exit, Bason, together with a second officer, walked up to her, identified himself as a. police officer and asked if he could speak with her. He described the subsequent events as follows:

She said, “Yeah.” I then asked her, “Did you just come in on a train,” and she said, “Yeah.”

I asked her, “Can I ask you where you came from,” and she said, “New York.” I asked her, “Do you have a train ticket or a receipt,” and she said, “No.” I asked her if she had any identification and she said no. I asked her what her name was and she said Kathleen Jermaine.

At this point she said, “Can you tell me why you’re stopping me because I did not do nothing.” At that time I informed her that I was a part of the Narcotics Interdiction Team, a team that was going to stop the flow of narcotics in Philadelphia by way of Amtrak trains.

I asked her, “Would you give me consent to search your bag,” and she just looked at me and she was also trembling very nervously. She did not say anything.

I then asked her again, “Miss, would you give me consent to search your bag.” She put her head down and said, “Yes,” and handed me her bag. At that point I opened the bag and I found a brown paper bag. Upon opening the brown paper bag, there was a plastic bag which contained a large amount of white powdery substance, whcch [sic] also was in the form of chunks.

Through my experience, I recognized this as possibly being cocaine.

I advised the defendant that she was under arrest. During Bason’s conversation with the girl, the second officer, who was also in plain clothes, stood about seven feet behind the girl.

The suppression court, in its opinion suppressing the contraband, reasoned that the police had lacked “reasonable suspicion” to believe that Jermaine was transporting drugs and that the stop, therefore, was unlawful. After the Commonwealth requested reconsideration of the court’s initial suppression order, the court concluded that the juvenile’s apparent consent to a search of her bag had been vitiated by her youth and the presence of the police. The Commonwealth, on appeal,¹ argues that the encounter between Bason and Jermaine did not rise to an investigatory stop and did not implicate the juvenile’s Fourth Amendment rights. However, even if it did amount to an investigatory stop, the Commonwealth argues, Jermaine voluntarily consented to the search of her bag.

Not every encounter between a citizen and the police is so intrusive as to trigger the protections provided by the Fourth Amendment to the United States Constitution. See: Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Douglass, 372 Pa.Super. 227, 238, 539 A.2d 412, 417 (1988). There is nothing in the Constitution which prevents a policeman from approaching a person on a public street or in a public place in order to make inquiries of that person. Commonwealth v. Brown, 388 Pa.Super. 187, 190, 565 A.2d 177, 178 (1989). See also: Terry v. Ohio, supra at 34, 88 S.Ct. at 1886, 20 L.Ed.2d at 913 (White, J. concurring); Commonwealth v. Hall, 475 Pa. 482, 488, 380 A.2d 1238, 1241-1242 (1977); Commonwealth v. Jones, 474 Pa. 364, 370, 378 A.2d 835, 838 (1977); Commonwealth v. Williams, 298 Pa.Super. 466, 469, 444 A.2d 1278, 1279 (1982). “A seizure of a person sufficient to trigger the protections of the Fourth Amendment occurs ‘only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.’ ” Commonwealth v. Ellis, 379 Pa.Super. 337, 354, 549 A.2d 1323, 1331 (1988), quoting Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565, 572 (1988). See also: INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247, 255 (1984); Commonwealth v. Jones, supra 474 Pa. at 372-373, 378 A.2d at 840; Commonwealth v. Williams, supra 298 Pa. Super, at 469-470, 444 A.2d at 1279. Factors to be considered in determining whether an encounter with police rises to the level of a seizure of the person 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.” Commonwealth v. Williams, supra, 298 Pa.Superior Ct. at 470, 444 A.2d at 1279. See also: Commonwealth v. Jones, supra 474 Pa. at 371-372, 378 A.2d at 838-840.

The United States Supreme Court has elaborated on the difference between a “mere encounter” and a seizure of the person which implicates the Fourth Amendment in the following manner:

We adhere to the view that a person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543, 554, 49 L.Ed.2d 1116, 96 S.Ct. 3074 [3081 (1976)]. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.

Moreover, characterizing every street encounter between a citizen and the police as a “seizure,” while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. “Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515, [10 L.Ed.2d 513, 83 S.Ct. 1336, 1344 (1963)].” Schneckloth v. Bustamonte, 412 U.S. [218], at 225, 36 L.Ed.2d 854, 93 S.Ct. 2041 [2046 (1973) ].

We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be 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. See Terry v Ohio, supra, at 19, n 16, 20 L Ed 2d 889, 88 S Ct 1868 [1879 n. 16], 44 Ohio Ops 2d 383; Dunaway v New York, 442 US 200, 207, and n 6, 60 L Ed 2d 824, 99 S Ct 2248 [2253, and n. 6 (1979)]; 3 W. LaFave, Search and Seizure 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

United States v. Mendenhall, 446 U.S. 544, 553-555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509-510 (1980) (Opinion Announcing Judgment of the Court per Stewart, J.) (footnote omitted). See also: Michigan v. Chesternut, supra 486 U.S. at 573-574, 108 S.Ct. at 1979-1980, 100 L.Ed.2d at 571-572; INS v. Delgado, supra 466 U.S. at 215-217, 104 S.Ct. at 1762-1763, 80 L.Ed.2d at 254-255; Florida v. Royer, 460 U.S. 491, 497-498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983) (Opinion Announcing Judgment of the Court per White, J.); 3 LaFave, Search and Seizure, § 9.2(h) (2d ed. 1987). The Supreme Court has also observed that

police questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. Cf. Schneckloth v. Bustamonte, 412 US 218, 231-234, 36 L Ed 2d 854, 93 S Ct 2041 [2049-2051] (1973). Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment. But if the person refuses to answer and the police take additional steps ... to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure. United States v. Mendenhall, 446 U.S., at 554, 64 L.Ed.2d 497, 100 S.Ct. 1870 [1877]; see Terry v. Ohio, 392 U.S., at 21, 20 L.Ed.2d 889, 88 S.Ct. 1868 [1879], 44 Ohio Ops.2d 383.

INS v. Delgado, supra 466 U.S. at 216-217, 104 S.Ct. at 1762-1763, 80 L.Ed.2d at 255. See, e.g.: United States v. Garcia, 866 F.2d 147 (6th Cir.1989) (airport confrontation did not amount to seizure where police did not touch defendant, did not display weapons and did not raise voices or threaten defendant in any way); United States v. $25,000 U.S. Currency, 853 F.2d 1501 (9th Cir.1988) (encounter at airport not a seizure where police merely approached defendant, identified themselves, and asked him for identification and consent to search his bag); Gomez v. Turner, 672 F.2d 134 (D.C.Cir.1982) (mere status of police officer as figure of governmental authority does not, standing alone, constitute sufficient show of authority to transform encounter into seizure).

In analyzing Supreme Court decisions, LaFave has commented:

[A]n officer has not made a seizure if, for example, he interrogated “in a conversational manner,” “did not order the defendant” to do something or “demand that he” do it, did not ask questions which were “overbearing or harassing in nature,” and did not “make any threats or draw a weapon.” Even physical contact is acceptable if it is “a normal means of attracting a person’s attention.” On the other hand, an encounter becomes a seizure if the officer engages in conduct which a reasonable man would view as threatening or offensive even if performed by another private citizen. This would include such tactics as pursuing a person who has attempted to terminate the contact by departing, calling to such a person to halt, holding a person’s identification papers or other property, blocking the path of the suspect, physically grabbing and moving the suspect, and encircling the suspect by many officers____

“Offensive statements,” such as “unsupported outright accusations of criminal activity or suggestions that an innocent person would be willing to relinquish constitutional rights, are not irrelevant” in such an analysis. Indeed, it may be true in a more general sense that the subject matter of the conversation which ensues has some bearing upon whether it may be said that the person was subjected to a Fourth Amendment seizure. But this is not to say ... that “Fourth Amendment rights are implicated” whenever “the individual is stopped or detained because the officer suspects he may be personally involved in some criminal activity,” but not when “the officer acts for other proper reasons.”

3 W. LaFave, Search and Seizure, § 9.2(h) at pp. 412-415 and supp. p. 36 (2d ed. 1987 and 1990 Supplement) (footnotes omitted).

Under circumstances similar to those in the instant case, the Court of Appeals for the Third Circuit, in United States v. Thame, 846 F.2d 200 (1988), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 333 (1988), held that a police officer’s non-threatening conversation with a suspect in the lobby of a train station had not risen to the level of an investigatory stop prior to the suspect’s giving consent to a canine sniff of his luggage. The defendant had traveled from Fort Lauderdale, Florida, to Philadelphia by train, where agents had been alerted by others in Florida that the suspect was believed to be carrying drugs. Upon the suspect’s arrival in Philadelphia, agents approached him, asked him his name, walked with him and ultimately obtained his consent to accompany them to an office so that a dog could sniff his luggage. As a result of a sniff search, a warrant was obtained, the bag was opened, and cocaine was found.² In concluding that the defendant had not been detained unlawfully by the police, the Court reasoned that the encounter in the lobby of the train station had not ripened into a seizure of the suspect prior to his consent to the canine sniff search. The officers had merely questioned the defendant regarding his identification, examined his train ticket and sought his consent to a search. Moreover, the police had not physically restrained the defendant in any way, nor had they attempted to control his movement by retaining his travel documents. Under these circumstances, the Court concluded, the suspect had not been seized; and, therefore, the police were not required to have reasonable suspicion before approaching the defendant and seeking his cooperation. See also: United States v. Alvarez-Sanchez, 774 F.2d 1036 (11th Cir.1985) (mere fact that agent identified self as INS agent did not transform encounter with defendant into a seizure); United States v. Notorianni, 729 F.2d 520 (7th Cir.1984) (fact that agent told defendant he was conducting a narcotics investigation prior to asking for consent to search luggage did not make encounter a seizure); Commonwealth v. Sanchez, 403 Mass. 640, 531 N.E.2d 1256 (1988) (fact that policeman told defendant he was conducting drug investigation and then asked for consent to search did not make the encounter a seizure). But see: United States v. Gonzales, 842 F.2d 748 (5th Cir.1988).

The rationale of these decisions from other jurisdictions is persuasive. Applying the same rationale to the instant case, we conclude that Officer Bason’s encounter with appellee did not rise to the level of a seizure of her person which invoked Fourth Amendment protections. Ba-son approached Jermaine and asked her if he could speak with her for a moment. There was no display of a weapon or other show of authority to suggest coercion. The record also does not disclose evidence that Bason or his companion had physically blocked appellee’s path or spoken to her in a threatening manner. Rather, the evidence suggests that Bason merely identified himself as a police officer and asked appellee if she had any travel documents or identification. Although identifying himself as a part of the Narcotics Interdiction Team, Bason did not tell appellee that she was suspected of criminal activity. Under these circumstances, it is clear that Jermaine had not been seized by the police before being asked to consent to a search of her bag. Therefore, Fourth Amendment guarantees were not implicated, and the suppression court erred when it held otherwise.

The suppression court erred further by determining that the juvenile, because of her age and a police presence, had not voluntarily consented to the search of her bag. Because Bason merely approached the juvenile and inquired if she would answer a few questions, it cannot be said that she was faced with a threatening or coercive police presence. The fact that the juvenile was sixteen and one-half years old at the time of the search, moreover, did not prevent her from giving voluntary consent to a search of her bag. “Although age is one element to acknowledge in ascertaining whether consent was given willingly, minority status alone does not prevent one from giving consent.” Commonwealth v. Maxwell, 505 Pa. 152, 162, 477 A.2d 1309, 1315 (1984), cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984) (consent to search house given by sixteen year old was valid where record was devoid of any evidence of emotional immaturity or mental instability and indicated to the contrary that decision was rational).

We have examined the record and have found no evidence to support a finding that Jermaine was emotionally or mentally immature so as to be incapable of giving valid consent for the police to search her bag. To believe otherwise is to discount entirely the fact that the juvenile was sufficiently mature to purchase a train ticket in New York and travel alone to Philadelphia. The fact that she did not refuse to talk with Bason, as well she might have done, does not permit a finding that she was so immature as to be unable to consent validly to a search of her handbag. When all the surrounding circumstances are considered, we are satisfied that the Commonwealth demonstrated that appellee’s consent had been voluntarily given and had not been the product of duress or coercion, either express or implied. See: Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Mamon, 449 Pa. 249, 255-256, 297 A.2d 471, 475 (1972). See also: Commonwealth v. Markman, 320 Pa.Super. 304, 467 A.2d 336 (1983); Commonwealth v. Lowery, 305 Pa.Super. 66, 74, 451 A.2d 245, 248-249 (1982).

The order suppressing the evidence seized from appellee is reversed, and the case is remanded for further proceedings. Jurisdiction is not retained.

POPOVICH, J., files a dissenting opinion.

1 . The Commonwealth may appeal from a trial court’s order suppressing evidence when it certifies in good faith that the suppression order will terminate or substantially handicap its prosecution of the case. See: Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). In the instant case, it is clear that the suppression order will substantially handicap the Commonwealth’s prosecution.

2 . These events were described in greater detail in the opinion of the Court as follows:

Philadelphia Police Officer Michael McCue, assigned to the Drug Enforcement Agency, followed Thame up from the platform to the lobby of 30th Street Station while DEA Special Agent John McCarty followed still further behind with Amtrak Investigator Doonan. In the lobby, McCue walked alongside Thame, identified himself, and asked if he could speak with Thame. Thame said that he did not mind. As they continued walking, McCue asked Thame if he had just gotten off the train from Florida, and Thame said that he had. McCue then asked Thame his name, and Thame replied "Albert Thame.” McCue then asked if he could see his train ticket. At this point, the two stopped walking as Thame reached into his pocket and produced his train ticket, bearing the name "B. Kelly.” Thame, in response to a question from McCue, explained that he was using the ticket of a friend who had to fly back. McCue then asked for identification, and Thame produced a driver’s license and old police identification in his correct name. Agent McCarty then joined McCue and Thame and identified himself. McCue handed the ticket and the identification to McCarty, who looked it over and handed it back to Thame. McCarty then explained that they were working with the Narcotics Interdiction Unit, seeking cooperation from passengers from source cities such as Miami and Fort Lauderdale, and asked if Thame would mind if McCue and McCarty looked in the luggage Thame was carrying. Thame declined, stating that he had "sensitive material” in his bag. McCarty replied that that was fine, that he had an absolute right to refuse, but asked whether it would be okay if they conducted the search in a more private place. Thame again declined. McCarty then asked whether Thame would object to a sniff search of the air around the bag by a dog, as this would be less intrusive. Thame agreed. McCarty then asked if Thame would mind accompanying them to the Amtrak police office, explaining that this would be more private and out of the way. Thame carried his own bag to the office. The entire conversation took about two minutes, and the walk to the Amtrak police office took less than a minute. At the office, a sniff search took place, and the dog indicated that there were drugs in Thame’s bag. The sniff search was repeated in another room. A warrant was then obtained, the bag was opened, and cocaine was found.

United States v. Thame, supra at 201-202.