# In the Interest of Jermaine

> Supreme Court of Pennsylvania · October 22, 1990 · 399 Pa. Super. 503

URL: https://www.frixlaw.com/law-library/cases/9737094

## Case

- **Full name:** In the Interest of Kathleen JERMAINE. Appeal of COMMONWEALTH
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 22, 1990
- **Citations:** 399 Pa. Super. 503; 582 A.2d 1058; 1990 Pa. Super. LEXIS 3049
- **Precedential status:** Published
- **Opinion:** Dissent by Popovich
- **Judges:** Wieand, Beck, Popovich
- **Cited by:** 31 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/9737094

## How later opinions describe it (automated extraction)

- stating that “age is one element to acknowledge in ascertaining whether consent [to search] was given willingly” (quotation omitted)

## Opinion text

POPOVICH, Judge,
dissenting.
I respectfully dissent from the majority’s conclusion that “Officer Bason’s encounter with appellee did not rise to the level of a seizure of her person which invoked Fourth Amendment protections.” Majority opinion, p. 1063. Rather, I am convinced that a “seizure” did occur and that the police did not possess the requisite “articulable suspicion” to justify the stop of Kathleen Jermaine.
In United States v. Mendenhall, 446 U.S. 544, 554-555 , 100 S.Ct. 1870, 1877 , 64 L.Ed.2d 497, 509 (1980), the United States Supreme Court stated:
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____
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____
In Florida v. Royer, 460 U.S. 491, 497-498 , 103 S.Ct. 1319, 1324 , 75 L.Ed.2d 229, 236 (1983) (plurality), the Supreme Court explained:
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. (Citations omitted) Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requir *517 ing some level of objective justification. (Citation omitted)
Instantly, I believe that Kathleen Jermaine was “seized” under the standards outlined in Mendenhall and Royer . Consider the facts: It is 5:30 p.m. on Wednesday, February 8, 1989, “rush-hour” at 30th Street Station in Philadelphia. Kathleen Jermaine, a juvenile who has just arrived from New York via Amtrak, is singled out of the crowded concourse by two plain clothes police officers. Officer Bason identifies himself as a police officer and asks if he may speak with her. The other officer moves to a position behind the young girl. After answering several questions, Kathleen questions, “Can you tell me why you’re stopping me because I did not do nothing.” To which Officer Bason responds, “I [am] a part of the Narcotics Interdiction Team, a team that [is] going to stop the flow of narcotics in Philadelphia by way of Amtrak trains.” Officer Bason then asks, “Would you give me consent to search your bag?” Kathleen, trembling and very nervous, did not respond. Again Officer Bason asked, “Miss would you give me consent to search your bag.” Only after the second request did Kathleen agree to the search and hand her bag to Officer Bason.
I am convinced that under the foregoing facts, a reasonable person would believe she was not free to leave. To hold otherwise would be to perpetuate the myth that a reasonable person, when confronted by police officers, actually believes she has the option of declining to listen to the officers and leaving without suffering further consequences. Although constrained to follow the judgment of the Supreme Court regarding what a reasonable person believes when confronted by a law enforcement officer, numerous Circuits of the United States Court of Appeal have recognized the artificiality of the Supreme Court’s test. See United States v. Thame, 846 F.2d 200, 202 (3rd Cir.1988), cert. denied, 488 U.S. 928 , 109 S.Ct. 314 , 102 L.Ed.2d 333 (1988) (“Although we have our doubts whether a reasonable person who is greeted by federal agents and *518 asked for identification feels free to simply ignore the agents____”); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984) (“Maybe this is a wrong guess about what the average person feels in this situation____”); United States v. Cordell, 723 F.2d 1283, 1286 (7th Cir.1983), cert. denied 465 U.S. 1029 , 104 S.Ct. 1291 , 79 L.Ed.2d 693 (1984) (Swygert, J., concurring) (“I believe that as a factual psychological matter people who are stopped for questioning of this kind by police officers ... generally do not feel ‘free to leave’____”); see also Note, The Drug Courier Profile and Airport Stops: Reasonable Intrusions of Suspicionless Seizures?, 12 Nova L.Rev. 273, 284 (1987) (lower courts recognize “the artificiality of the test”). 1 We are not so constrained and are free to use Article 1, § 8 of the Pennsylvania Constitution to guard individual privacy rights against unreasonable searches and seizures more zealously than the federal courts do under the United States Constitution. Commonwealth v. Melilli, 521 Pa. 405 , 555 A.2d 1254 (1989); Commonwealth v. Beauford, 327 Pa.Super. 253 , 475 A.2d 783 (1984), allocatur denied, 508 Pa. 319 , 496 A.2d 1143 (1985).
When Kathleen asked Officer Bason why she was being detained, Officer Bason told her he was part of the Narcotics Interdiction Team. 2 Thus, he implicitly informed Kathleen that she was the target of a narcotics investigation. This fact, combined with the other circumstances surround *519 ing the stop of Kathleen, compels a conclusion that Kathleen was seized at the time Officer Bason revealed he was on the Narcotics Interdiction Team and requested to search her bag. Certainly, under the facts sub judice, a reasonable person (not to mention a juvenile) would not feel free to leave with the fear of formal detention. See Thame, 846 F.2d at 203 (“Statements which intimate that an investigation has focussed on a specific individual easily could induce a reasonable person to believe that failure to cooperate would only lead to formal detention.”); United States v. Gonzales, 842 F.2d 748 (5th Cir.1988) (a statement by a law enforcement officer that an individual is suspected of illegal activity is persuasive evidence that the Fourth Amendment has been implicated); United States v. Borys, 766 F.2d 304, 311 (7th Cir.1985), cert. denied, 474 U.S. 1082 , 106 S.Ct. 852 , 88 L.Ed.2d 893 (1986) (same); United States v. Berry, 670 F.2d 583 (5th Cir.1982) (en banc) (same).
The majority asserts that Kathleen was not informed that she was a suspect of a narcotics investigation, and therefore, compares this case to Thame, supra, where no investigatory stop was found when an officer approached an individual, identified himself as a member of the Narcotics Interdiction Team seeking cooperation from passengers from source cities and then requested a consent search. However, the facts of Thame, supra, differ in two significant respects. First, the defendant in Thame, supra, was an ex-police officer who undoubtedly had a greater awareness of his rights than Kathleen, a juvenile. Second, Thame was informed of his absolute right to refuse to talk to the officers or consent to a search of his bags; Kathleen received no such warning. Rather, immediately after informing her of his status as a narcotics investigator, Officer Bason requested consent for a search, and, when Kathleen did not respond, he again asked. I have little doubt that an individual faced with the same circumstances would believe he or she was the suspect of a drug investigation. And, I *520 submit such belief is reasonable. 3
Since I would find that Kathleen was seized within the meaning of the Fourth Amendment, I must next determine whether reasonable suspicion for the stop existed. In Florida v. Rodriguez, 469 U.S. 1 , 105 S.Ct. 308 , 83 L.Ed.2d 165 (1984), the Supreme Court of the United States commented:
Certain constraints on personal liberty that constitute “seizures” for the purpose of the Fourth Amendment may nonetheless be justified even though there is no showing of “probable cause” if “there is articulable suspicion that a person has committed or is about to commit a crime.” Florida v. Royer, supra, 460 U.S., at 498 , 103 S.Ct., at 1324 (opinion of WHITE, J.). Such a temporary detention for questioning in the case of an airport search is reviewed under the lesser standard enunciated in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and is permissible because of the “public interest involved in the suppression of illegal transactions in drugs or of any other serious crime.” Royer, supra, 460 U.S. [at] 498-499, 103 S.Ct. [at] 1324-1325.
Instantly, I agree with the court below that articulable suspicion for the stop did not exist. As stated by Judge Reynolds in his opinion in support of the decision to suppress the seized evidence:
Kathleen Jermaine, a slight 17 year-old black girl, purchased a one way ticket at Pennsylvania Station in New York City to Philadelphia (N.T. p. 4). The only suspicious conduct that the officer was able to articulate was that she appeared to be “nervous and concerned with his presence when she appeared to notice him standing there.” (N.T. p.4)
When the defendant went to her train, the officer followed her, maintaining constant eye contact with her (N.T. p. 5). This court believes that any young *521 woman at Penn Station in New York City who was subjected to eye to eye contact by a man in civilian clothes and then followed to her train would be nervous and watchful. (Emphasis in original.)
Once at 30th Street Station, Officer Bason has offered no evidence of suspicious action except for Kathleen’s nervousness displayed once approached by the police. Certainly, the facts of this case do not rise to the level of reasonable suspicion, and the evidence seized as a result of the stop must be suppressed. Accordingly, I would affirm the suppression order of the court below.
. In his concurring opinion in Mendenhall , Mr. Justice Powell, joined by Mr. Chief Justice Burger and Mr. Justice Blackmun, stated, "For me, the question of whether the respondent in this case reasonably could have thought she was free to 'walk away' when asked by two Government agents for her driver’s license and ticket is extremely close.” Mendenhall, 446 U.S. at 560 n. 1, 100 S.Ct. at 1880 n. 1. Thus, Mr. Justice Powell appears to recognize the folly in assuming reasonable persons feel free to disregard an officer’s questions and walk ' away.
. I note that Officer Bason never informed Kathleen that she was free to leave in response to her question of "Can you tell me why you’re stopping me ... ?” This is further evidence that Kathleen did not believe she was free to go. Similarly, a reasonable person would not believe she was free to leave when after questioning the reasons for the stop, the officer did not give a responsive answer but instead informed her that he was investigating narcotics trafficking.
. One wonders how many times a day police officers stop and intrude upon the privacy rights of innocent travelers without finding contraband. One must remember cases like this only come before us when drugs are found. This fact should not be used to justify an otherwise unreasonable invasion of privacy.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9737094. Public record. Not legal advice.