Commonwealth v. Lovette

SPAETH, Judge,

dissenting:

The majority holds that the police, by putting appellant into the police wagon and transporting him to the scene of the burglary, did not “arrest” him, but instead carried out a permissible “intermediate response”, short of a full arrest. At 392. This holding, I submit, is incorrect under a number of decisions, which Judge HESTER collected and stated in Commonwealth v. Gray, 262 Pa.Super. 351 , 396 A.2d 790 (1979). In Gray , police were given a description of robbers and stopped four individuals, put them into the police van, and drove back to the scene of the robbery. Judge HESTER said:

Nor do we have any trouble deciding that placing appellant in the police wagon constituted a full blown arrest. See, Commonwealth v. Holmes, 482 Pa. 97 , 393 A.2d 397 (1978) (defendant arrested when escorted to a room by a police officer and locked therein); Commonwealth v. Rosciola, 240 Pa.Super. 135 , 361 A.2d 834 (1976) (defendant arrested when handcuffed); Commonwealth v. Kloch, 230 Pa. Super. 563 , 327 A.2d 375 (1974) (defendant arrested when placed in trooper’s patrol car); Commonwealth v. Bosurgi, 411 Pa. 56 , 190 A.2d 304 (1963): “An arrest may be accomplished by ‘any act that indicates an intention to take [a person] into custody and subjects him to the actual control and will of the person making the arrest.’ ” Id., 411 Pa. at 68 , 190 A.2d at 311 . Commonwealth v. Gray, supra, at 792, n. 1.

See also, Commonwealth v. Morton, 475 Pa. 374 , 380 A.2d 769 (1977) (arrest occurred when police handcuffed defendant and gave him no indication he could leave police building). In light of these cases, it cannot be seriously contended that the police did not arrest appellant, even though the distance they transported him was a short one.

*258 The correctness of these Pennsylvania cases was recently underscored by the Supreme Court of the United States in Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979). There, acting on a tip that did not amount to probable cause to arrest, the police “picked up” a suspect and took him to the station house for interrogation. The police admitted that the suspect was not free to leave (as, here, the majority “accept[s] that appellant was required to accompany the officer for the one and one-half block trip,” at 392), but argued for just the sort of intermediate response (or “balancing test”, Dunaway v. New York, supra, at 200, 99 S.Ct. 2248 ) that the Commonwealth urges here. The Supreme Court rejected that argument:

The Fourth Amendment, applicable to the States through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961) provides: “The right of the people to be secure in their persons . against unreasonable searches and seizures shall not be violated and no Warrants shall issue but upon ‘probable cause . . . ’.” There can be little doubt that petitioner was “seized” in the Fourth Amendment sense when he was taken involuntarily to the police station. And respondent State concedes that the police lacked probable cause to arrest petitioner before his incriminating statement during interrogation. Nevertheless respondent contends that the seizure of petitioner did not amount to an arrest and was therefore permissible under the Fourth Amendment because the police had a “reasonable suspicion” that petitioner possessed “intimate knowledge about a serious and unsolved crime.” Brief for Respondent at 10. We disagree. Id. at 207, 99 S.Ct. at 2253-2254 (footnotes omitted).

The Court refused to extend Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972) (upon which the majority relies). The nature of the intrusion in those cases, the Court said, was much less offensive than the intrusion forced upon the defendant in Dunaway . Indeed, *259 in neither Terry nor Adams was there a transporting of the defendants away from the spot where they were found:

In contrast to the brief and narrowly circumscribed intrusions involved in those cases, the detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was “free to go”; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment’s requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an “arrest” under state law. The mere facts that petitioner was not told he was under arrest, was not “booked,” and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, see Cupp v. Murphy, 412 U.S. 291 [ 93 S.Ct. 2000 , 36 L.Ed.2d 900 ] (1973), obviously do not make petitioner’s seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any “exception” that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are “reasonable” only if based on probable cause. Dunaway v. New York, supra, at 212, 99 S.Ct. at 2256 .

The majority finds support for its “intermediate response” theory in two cases of this court. However, one, Commonwealth v. LeSeuer, 252 Pa.Super. 498 , 382 A.2d 127 (1977), is inapplicable. In that case, the majority held that probable cause to arrest existed. Therefore, the question we face here was solved at the outset. It is true that in dissent I argued for what might be called an intermediate response, but I in no way indicated that such a response could encompass taking the defendants away. Indeed, that was precisely what I objected to. Instead, I argued for exactly what I *260 urge here: that the police, instead of transporting suspects, use their investigatory skills at the spot where they find the suspects. Here, the putative owner of the camel colored hat was one and one-half blocks away from appellant. There is no reason why the police could not have protected their investigation, and appellant’s rights too, by asking the owner to travel the one and one-half blocks to identify the cap. Terry would certainly allow such a brief, on-the-spot detention of appellant.

Commonwealth v. Harper, 248 Pa.Super. 344 , 375 A.2d 129 (1977), provides more support for the majority, but is readily distinguishable. There, the police had probable cause to believe that the perpetrators of a crime were among the passengers on a bus. All those on the bus who fit the description were taken to the hospital, where the victim identified the defendant. As the opinion notes, at least the police knew they had probable cause to arrest somebody in the group; furthermore, the victim could not come to the scene. Here, however, there was no such neatly described class definitely including the perpetrators, and the owner of the hat was readily available to come to the site. 1

Having decided that the police arrested appellant, I next ask whether there was probable cause for this arrest. The police were told only that “males” were seen with apparently stolen property; from footprints in the mud, the police could also presume that the culprits, would have muddy shoes. They stopped appellant and his companions, although they did not know how many men were involved, their ages, their races, or any other item of description. The group was stopped a block and a half from the scene of the crime, and about 25 minutes after the call about the “males” came over the radio. I submit that nothing conclusive — or even strongly probative — can be deduced from appellant’s location in mid-afternoon in a residential area. The most probative fact was that appellant and his two friends had mud on their shoes. Yet the officer testified that the area included many *261 houses with back yards, and a demolition site that would have had “some” dirt, N.T. suppression hearing at 17, 21. Appellant could produce no identification, seemed “evasive,” and had a hat in a bag. These facts do not amount to probable cause to arrest. 2 The majority, by analyzing the issue in terms of whether the police were permitted to transport appellant on less than the quantum of proof necessary to support a full arrest, apparently concedes as much.

The physical evidence and appellant’s statements being fruits of an unlawful arrest, I should reverse the judgment of sentence and remand for a new trial.

HOFFMAN, J., joins in this dissenting opinion.

. I express no opinion whether, in light of Dunaway v. New York, supra, Commonwealth v. Harper remains good law.

. Since the frisk, which yielded a man’s ring and old dime, was conducted incident to the decision to load the three into the police van, those items — assuming they were probative — may not be considered in determining the question of probable cause to arrest.