# Commonwealth v. Wilmington > Superior Court of Pennsylvania · March 31, 1999 · 1999 Pa. Super. 66 URL: https://www.frixlaw.com/law-library/cases/9700544 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Marcus A. WILMINGTON, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** March 31, 1999 - **Citations:** 1999 Pa. Super. 66; 729 A.2d 1160; 1999 Pa. Super. LEXIS 824 - **Precedential status:** Published - **Opinion:** Dissent by Eakin - **Judges:** McEwen, Cavanaugh, Sole, Kelly, Eakin, Joyce, Stevens, Schiller, Lally-Green - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9700544 ## Opinion text EAKIN, J., dissenting: ¶ 1 The majority provides a fíne compilation of Fourth Amendment caselaw and the dangers of overzealous government agents; however, I cannot find any fact in this suppression record which constitutes an unconstitutional act. As such, I am compelled to dissent, joining as well the thoughtful dissent of Judge Stevens. No matter how distasteful one finds the notion of interdiction techniques, 13 if this agent did nothing improper, there is no basis for overturning the suppression court’s decision. ¶ 2 I believe the majority errs faetually 14 and legally at the outset of its analysis, by calling this a stop. It is not a stop in search and seizure terms, but an encounter. It was a planned encounter to be sure, but the bus was already at rest, on its own, at the time the agent approached the driver. The agent did not stop it by approaching the driver. Cases such as Commonwealth v. Swanger, 458 Pa. 107 , 307 A.2d 875 (1973) and Commonwealth v. Whitmyer, 542 Pa. 545 , 668 A.2d 1113 (1995), cited at length by the majority, are not applicable to the approach of a vehicle already at rest without police intervention. ¶ 3 There is no illegality in the request for the driver’s cooperation - an officer may always ask, if lawfully in position to do so. Only if the request is under coercive circumstances which preclude voluntary consent will the request be constitutionally invalid. 15 The agent did not ask for the driver’s documents at this point, *1176 nor did he suggest any penalty for declining cooperation. Company policy gave the driver discretion to decline cooperation, which means he knew he didn’t have to agree. The driver did agree, and unless we hold an agent’s identity is per se coercive, his agreement was not involuntary. ¶ 4 There is no “common carrier” exception to consent considerations, nor is there logic for one. The same constitutional law applies to all vehicles; the driver of a bus has the same constitutional rights as the driver of a car, no more, no less. Likewise, the passengers of a bus, having surrendered to the driver the decision of which route to take, whether to stop, go, speed up or slow down, to pay the toll or drive through the booth, are in the same position as passengers of a car. If the driver agrees to stop, the passengers cannot complain their rights are violated. If the driver allows the officer to ride along, the passengers cannot complain. If the driver consents to a search of a vehicle in his possession, the passengers cannot complain until the search reaches items in their individual control. ¶ 5 At the point the driver agreed to pull to the side, the agent had done nothing which violated the rights of the driver or the passengers. The subsequent words of the driver to the passengers, twice quoted by the majority, may be relevant to the subjective thoughts of the passengers, but our issue is determined from an objective standard, focusing solely on the conduct of police. Hoak, supra. These were not the words of the police, nor were they the words of an agent of the police, and comprised no governmental action, much less illegality. No matter what the driver told passengers, if done without a police request or coercion, there is no constitutional significance to these words. ¶ 6 I can find no illegality to the point the police entered the bus. Inside, they conducted relevant searches of two bags. The first was on the floor; appellant acknowledged it was his, and consented to revealing its contents, a pair of sneakers. As the officer was lawfully in a position to ask, and the cooperation was not based on any articulable coercion beyond the officer’s occupation, I find no impropriety in that search. 117 The second bag was in the luggage rack. When the agent asked for its owner, no one acknowledged it. With no owner, did appellant have possession? Where is the illegality in searching a bag with no owner? At that point the driver, in control of the bus and its contents, certainly had possession equal to anyone else, and he consented to its search. ¶ 8 At this juncture, appellant was between a rock and a hard place, but that position was not the result of police illegality — his dilemma was the result of knowing the contents of the second bag. He had every right to claim possession and deny permission to search; his rejection of this option was understandable, for it would tie him to the cocaine. He also had the right to say nothing, to tacitly deny ownership; while this kept him from being able to deny permission to search, it did not connect him to the drugs. His decision was made difficult by what was in the bag, not by police illegality. The first choice was not appealing; the alternative left the bag unclaimed and searchable. Having to choose between a rock and a hard place does not make appellant’s choice coerced. ¶ 9 I believe the majority rightly expresses concern about governmental overreaction in the “war on drugs,” 16 but in *1177 turn overreacts to the facts of this case. This bus was not stopped by police. If “seized,” it was with the uncoerced consent of someone clearly allowed to consent. The pressure inside the bus came from appellant’s knowledge of the contents of the bag he chose to disavow. If examined step by step, there simply is no police impropriety in the events of this day. While the majority gives us a compelling reminder of the need to guard against governmental impropriety, the manifest dislike of the technique used here obscures the fact there simply was no unconstitutional conduct. ¶ 10 Accordingly, I dissent. ¶ 11 JOYCE and LALLY-GREEN, JJ. join the Dissenting Opinion by EAKIN, J. .This vantage point causes the majority to emphasize constitutional red herrings. For example, the majority stresses the practical restraints on appellant’s ability to "walk away.” This question is illusory; if he was not able to walk away, it was because he decided to leave the driving to Greyhound - that’s the choice which put him, quite voluntarily, in the confines of a bus in the "wilds" of Monroe County. The proper constitutional analysis examines police conduct, not circumstances created by appellant's choice of transportation. The only reason he could possibly have to think his trip wouldn’t continue involved the potential discovery of the cocaine, not the location of the bus. . When reviewing the denial of a suppression motion, we must determine whether the record supports the suppression court’s factual findings, and if it does, we may reverse only for legal error. Commonwealth v. Abdul-Salaam, 544 Pa. 514 , 678 A.2d 342, 347 (1996), cert. denied, 520 U.S. 1157 , 117 S.Ct. 1337 , 137 L.Ed.2d 496 (1997). While I do not suggest a desire to reach a certain result no matter the suppression record, the majority specifically declines to apply this standard to the facts found by the suppression court, then cites testimony from trial and the facts from other cases to support its analysis of what are entirely suppression issues. . See Commonwealth v. Lopez, 415 Pa.Super. 252 , 609 A.2d 177 (1992). The majority also suggests our en banc decision in Commonwealth v. Hoak, 700 A.2d 1263 (Pa.Super.1997) holds 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. I believe this is an incorrect reading of Hoak. Hoak holds that if the documents are returned and the individual is told he may leave, there is no coercion - *1176 Hoak did not create a requirement that consent is invalid absent a Miranda-like warning. Hoak repeatedly states the issue of coerced consent turns on the individual facts of a case, and rejects such a bright-line rule. . Coined as a political buzzword to justify aggressive enforcement tactics, the phrase “war on drugs,” is now invoked more as a derogatory euphemism, used to shroud all proactive police techniques with an umbrella of suspicion. Called a war years ago, in reality it has never been more than a series of skirmishes. We must evaluate each case on its facts, instead of letting the term "war" become a hobgoblin fogging our analysis in either direction. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9700544. Public record. Not legal advice.