Commonwealth v. Matos

CASTILLE, Justice,

dissenting.

The majority opinion here holds that police officers, in the exercise of their duty cannot, and in reality, shall not, observe the behavior of certain individuals and during the course of that observation attempt to ascertain whether or not criminal conduct is afoot by merely approaching an individual on a public street without subjecting evidence abandoned thereby to suppression.

*463 This is a radical departure from what has long been the reasoned policy of this Commonwealth. Perhaps the majority fears that the mere approach of an individual by an investigating police officer and the subsequent following of that individual by the officer when the individual takes flight somehow places the Commonwealth at the top of a slippery slope leading inexorably to a police state or to the quartering of troops in private homes or even to the rebirth of writs of attainder. Rather, in this Commonwealth we have adopted and this Court has, in the past, adequately protected the delicate balance of the interests of the citizenry. Our citizens have an absolute interest in preserving their right to be free from unwarranted intrusion by police officers. But our citizens also have the competing right to be free from those who roam the streets, destroy the neighborhood and threaten the fabric of our lives and the public safety with contraband and weapons on public streets and byways.

The majority’s holding now requires our police to determine with absolute certainty that criminal activity is afoot, that a person is armed, or that a person has committed a given crime before police officers may pursue that person in any manner, be it by foot, by vehicle, by observation from afar or by merely asking questions of that person on the street. Clearly, law enforcement efforts will be greatly hampered since police officers under this decision are left with little authority to pursue, follow, or even approach and ask questions of suspects absent probable cause or reasonable suspicion to do so.

In the matters sub judice, I believe that the police officers’ approach and pursuit of appellants were not seizures under any common sense or legal meaning of the word, nor was police conduct a show of authority and, therefore, the contraband seized constituted abandoned property lawfully obtained by the police officers. For the following reasons, I would find that such seizure of discarded property does not violate either the Fourth Amendment to the United States Constitution or its Pennsylvania Constitutional equivalent and, therefore, was admissible at trial.

*464

Discussion

A. Fourth Amendment

The seminal question before this Court is whether the police officers’ mere approach and subsequent pursuit of the appellants in the aforementioned matters constitutes a “seizure” which invokes the protections of the Federal and Pennsylvania constitutions. Clearly, the protections of the United States Constitution are not invoked. The United States Supreme Court recently examined the parameters of what constitutes a seizure under the Fourth Amendment in California v. Hodari D., 499 U.S. 621 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991). Under Hodari D., that Court held that a seizure did not occur where police officers chased a suspect, even where it was conceded that they had no probable cause or even reasonable suspicion to do so. Therefore, since such a pursuit did not constitute a seizure under the Fourth Amendment of the United States Constitution, the Supreme Court held that the evidence discarded by Hodari D. during the chase was not the fruit of an illegal seizure which would warrant suppression of the evidence.

A summary of the evidence in Hodari D. is that two police officers wearing jackets with a “Police” emblem on the back were patrolling in an unmarked car in a high-crime area. As they drove towards a group of youths, the youths looked in the officers’ direction and immediately fled. The officers exited their car and pin-sued the youths to investigate. While Hodari D. ran, he discarded what the pursuing officer believed to be a small rock. After seeing the rock discarded, the officer tackled Hodari D. and handcuffed him. At trial, the prosecution established that the “rock” that was discarded was crack cocaine.

Upon appeal, the United States Supreme Court held that regardless of whether the police had reasonable suspicion or probable cause to pursue Hodari D., the item Hodari D. discarded was not the fruit of an illegal “seizure” of his person under the Fourth Amendment. In arriving at its conclusion, the Court held that under the Fourth Amendment a seizure does not occur unless the police either apply physical force *465 with lawful authority, or the suspect submits to the assertion of police authority. Since at the time Hodari D. discarded the evidence that was later used against him, police had neither physically touched nor restrained him, and Hodari D. had not submitted to any assertion of police authority (e.g. by stopping), the Court found that no seizure had occurred. Rather, a seizure was found only to have occurred at the moment the pursuing officer physically tackled the youth. Hence, because the illegal contraband was discarded before any police seizure occurred, the Court considered it voluntarily abandoned and, therefore, admissible evidence.

Given the similarities between Hodari D. and the instant three cases, it is clear that the officers’ pursuit of appellants in the instant cases did not constitute seizures under the Fourth Amendment. Here, at the time appellants discarded their respective contraband, the police officers had not physically touched or restrained them and the appellants had not submitted to the police officers’ assertion of authority. Rather, appellants, of their own volition, fled from the police officers upon merely observing the officers approach their location. Hence, there was no seizure which had occurred at the time appellants discarded the illegal contraband during flight. A seizure occurred only at the time the police officers physically restrained appellants. Thus, under the United States Constitution and Hodari D., appellants’ federal Fourth Amendment rights were not violated and the evidence was properly admissible. Hodari IX, supra. 1

B. Article 1, Section 8 of the Pennsylvania Constitution

Notwithstanding that the pursuit of appellants by the police did not constitute a seizure in terms of the Fourth Amend *466 ment, appellants further contend that the police officers’ pursuit or chase violates Article 1, Section 8 of the Pennsylvania Constitution which provides: “[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures____” Just as the Federal Constitution fails to define specifically what constitutes a seizure, Article 1, section 8 of the Pennsylvania Constitution also fails to specifically define what constitutes a seizure.

As this Court recognized in Commonwealth v. Ellis, 541 Pa. 285 , 662 A.2d 1043, 1046 (1995), there are essentially three categories of encounters between citizens and the police: (1) custodial detentions, (2) investigative detentions, and (3) mere encounters. In determining whether the contraband that each of the appellants discarded should be suppressed, we must first determine into which of these categories a police pursuit, like those at issue, falls into so as to determine whether the police were required to possess a requisite level of information before pursuing appellants and, if so, whether police in fact possessed the requisite information that would make lawful both the encounter and the ensuing obtaining of contraband discarded as a result of the encounter.

1. Custodial Detentions

It is well-settled law in Pennsylvania that police must have probable cause to effect a lawful arrest or custodial detention. Commonwealth v. Rodriquez, 532 Pa. 62 , 614 A.2d 1378 (1992); accord Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979). If police do not have the requisite probable cause for such a seizure, evidence seized or discovered as a result of the unlawful seizure will normally be suppressed unless it falls into certain recognized exceptions. The question is therefore, what police conduct constitutes an arrest or a custodial detention?

In Commonwealth v. Bosurgi, 411 Pa. 56 , 190 A.2d 304, 311 (1963), cert. denied, 375 U.S. 910 , 84 S.Ct. 204 , 11 L.Ed.2d 149 (1963), this Court grappled with and answered such a question. Initially the Court noted that “[o]fficers are not required to make any formal declaration of arrest or use the word *467 ‘arrest’,” in order for an arrest to exist. The Court further noted that although an arrest can occur when police seize a person physically, that an arrest may still occur where there is no physical restraint “as to be visible to the eye.” Id. (citing McAleer v. Good, 216 Pa. 473, 475 , 65 A. 934, 935 (1907)). Where there is no such physical restraint, the Court stated that an arrest occurs 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” (citing with approval 5 Am.Jur.2d Arrest § 1, p. 695) (emphasis added). See Commonwealth v. Ellis, supra, 541 Pa. at 292-294 , 662 A.2d at 1047 (custodial detention is deemed to arise when the conditions or duration of an investigative detention become so coercive that a reasonable person feels that he or she is unable to leave).

In Bosurgi , police were notified of a burglary at a jewelry store during which watches and jewelry were stolen. The next day, police received a telephone call from an anonymous source claiming that a man was attempting to sell watches in a certain taproom located near the burglarized store. The caller described the man as having bushy grey hair, needing a shave, short in stature, swarthy in appearance, and wearing tweed pants and a striped shirt. Police investigated the Information and went to the taproom but found no one there that matched the description. The detectives then went into the taproom located directly across the street from the burglarized store where they observed Bosurgi, who matched the description, seated at a table.

One of the detectives approached Bosurgi and ordered him to stand up. When Bosurgi complied, the detective turned him around and patted him down, at which time he felt the watches in Bosurgi’s trousers pockets. The detective removed eight watches from Bosurgi’s pockets which were identified as part of the stolen merchandise. The detective also found bits of glass in Bosurgi’s pockets, which were later found to have matched the glass of the burglarized store.

The trial court granted Bosurgi’s motion to suppress the evidence seized from him holding that the evidence was ob *468 tained as a result of an unlawful search and seizure under the United States and Pennsylvania Constitutions. The Superior Court reversed the trial court’s suppression ruling. Upon appeal to this Court, this Court held that Bosurgi’s submission to the detectives’ show of authority in the taproom did amount to an arrest. However, the Supreme Court affirmed the Superior Court because it found that the search was nevertheless lawful because the detectives had probable cause for the arrest. 2

Under Bosurgi , therefore, like Hodari D., an arrest occurs when the suspect is under the actual physical control of a police officer or when the suspect, feeling that he is not free to leave, submits to a police officer’s show of force or authority. In the matters at issue here, appellants were neither under the police officers’ actual physical control, nor did they submit to any exercise of force or authority by the officers. 3 Rather, appellants simply ran, of their own volition and in any direction that they chose, upon merely seeing a police officer approach them. Clearly, appellants were not under arrest, nor were they subjected to a custodial detention pursuant to Bosurgi . 4 ,

*469 2. Investigative Detention

An investigative detention occurs when police stop and detain a person to investigate. However, such a detention will rise to the level of an arrest unless the detention is for a relatively brief period of time and there are no coercive conditions present which constitute the functional equivalent of arrest. Commonwealth v. Ellis, supra, 541 Pa. at 292-294 , 662 A.2d at 1047 (officer’s detention of defendant constituted investigative detention rather than custodial detention where defendant was detained for only ten to fifteen minutes until second officer arrived, where defendant’s vehicle matched the description of the vehicle involved in a burglary, where the *470 officer’s suspicions were diligently pursued, and where the period of detention was primarily used for the legitimate purpose of issuing a traffic citation). 5 In the matters here, the interaction between appellants and the police did not rise to the level of an investigative detention in that appellants were not detained in any way nor were their physical movements restricted in any manner by police. Clearly, the officers’ conduct of mere pursuit of appellants without any intrusion upon their path of flight cannot be deemed to amount to an investigatory stop.

3. Mere Encounter

Mere encounters, unlike custodial or investigative detentions, need not be supported by either probable cause or a reasonable suspicion. A mere encounter occurs where an officer approaches another person, but the person has no official obligation to stop or to respond to police questions or remarks. Commonwealth v. Ellis, supra, 541 Pa. at 292-294 , 662 A.2d at 1047 . 6 Accord Commonwealth v. Berrios, 437 Pa. *471 338, 340 , 263 A.2d 342, 343 (1970) (police may legally stop and question a person without probable cause or reasonable suspicion). See Terry v. Ohio, 392 U.S. 1, 19, n. 16 , 88 S.Ct. 1868, 1878-1879, n. 16 , 20 L.Ed.2d 889 (1968) (not every encounter between police officers and citizens amounts to a seizure; “there is nothing in the [federal] constitution which prevents a policeman from addressing questions to anyone on the streets”.)

Here, police were not even afforded the opportunity for a mere encounter to address questions to appellants since appellants left the area immediately upon their detection of police approaching. Police, without stopping, questioning, or otherwise interfering with appellants’ course of behavior, simply followed appellants along the public highway at a pace set by appellants themselves. See Commonwealth v. Hall, 475 Pa. 482, 488 , 380 A.2d 1238, 1242 (1977), quoting, Commonwealth v. Jones, 474 Pa. 364, 370 , 378 A.2d 835, 838 (1977), cert. denied, 435 U.S. 947 , 98 S.Ct. 1533 , 55 L.Ed.2d 546 (1978) (there is nothing in the Constitution which prevents a police officer from approaching a person on the street in order to make inquiries of that person) (citations omitted). Under these circumstances, the action of the police did not even rise to the minimal intrusion which constitutes a mere encounter. Therefore, I would hold that the police did not need probable cause or even a reasonable suspicion to follow each of the appellants as they took flight. The mere approach of a police officer is not the type of showing of authority which invokes the protection of the search and seizure laws of this Commonwealth.

Having been lawfully on the public highway, police should be able to lawfully seize the discarded contraband which was in plain view and in a public location. Harris v. United States, 390 U.S. 234, 236 , 88 S.Ct. 992, 993-994 , 19 L.Ed.2d 1067 (1968) (items appearing within the plain view of an officer who *472 has a right to be in that position are subject to seizure); Commonwealth v. Harris, 479 Pa. 131 , 387 A.2d 869 (1978) (where police have a lawful right to be in the position of observation, they can lawfully seize objects in plain view). Obviously, once police observed and seized the abandoned contraband, police then had sufficient probable to arrest each appellant.

The majority’s reliance upon United States v. Mendenhall, 446 U.S. 544, 100 . S.Ct. 1870, 64 L.Ed.2d 497 (1980), in reaching the majority’s conclusion that such circumstances sub judice give rise to a seizure, is wholly misplaced. As the majority states, the test is whether, “in view of ail the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” 446 U.S. at 554 , 100 S.Ct. at 1877 . Here, each defendant clearly believed he was free to leave as each was indeed exercising this belief by leaving the respective locations when police officers approached. The police did not physically stop the defendants from leaving, did not order the defendants to stop and, indeed, did not interfere with their freedom in any manner. The officers here were in a public place attending to their assigned duties. Appellants chose to flee rather than confront the officers. They should not now be able to complain if the officers chose to give pursuit, as is their lawful authority. To hold that a police officer cannot pursue an individual in the situations described here is to give to the interpretation of the Pennsylvania Constitution, an absurdity that was never meant by its framers.

The Constitutional provision at issue was designed to punish or deter improper police conduct. The officers’ unintrusive conduct here cannot be said to be improper. Logically, the holding by the majority may be extended to prevent police officers from pursuing vehicles on the highway or from following suspicious individuals on the public streets unless the police possess probable cause or reasonable suspicion to believe a crime has occurred. Evidence voluntarily abandoned during these situations would most likely be suppressed under the majority’s opinion. Part of a police officer’s duty is to *473 investigate crime before it occurs, not simply stand by idly and wait for an offense to be committed before taking action. A visible police presence is essential to satisfy this duty. That a person voluntarily chooses to flee from the “mere presence” of a police officer should not immunize that person when he abandons contraband, weapons, or any other evidence during the course of his flight and a police officer’s pursuit. In sum, “there is but one step from the sublime to the ridiculous.” (Attributed to Napoleon I, after his retreat from Russia, December, 1812). Such step has now been taken by the majority which inexplicably affords to criminals in Pennsylvania greater protection for their deviant conduct than that afforded criminals in our sister states and which now greatly restricts police officers’ effectiveness in ferreting out criminal conduct.

Accordingly, I respectfully dissent and would affirm the orders of the Superior Court.

. The suppression courts below each relied on this Court’s opinion in Commonwealth v. Jeffries, 454 Pa. 320 , 311 A.2d 914 (1973), to hold that the evidence seized from the appellants in these cases was inadmissible. In Jeffries , this Court determined that the Fourth Amendment prevented a police officer from pursuing Jeffries when that police officer did so without even reasonable suspicion that criminal activity was afoot. I believe that Hodari D. overrules Jeffries sub silentio by holding that a chase does not constitute a seizure under the Fourth Amendment.

. It is well established that-if an arrest is lawful, then a search and seizure incident to the arrest are valid. Commonwealth ex rel. Whiting v. Rundle, 414 Pa. 17, 19 , 198 A.2d 568, 569 (1964); Commonwealth v. Bosurgi, 411 Pa. 56, 67 , 190 A.2d 304, 310 (1963), cert. denied, 375 U.S. 910 , 84 S.Ct. 204 , 11 L.Ed.2d 149 (1963); Commonwealth v. Cockfield, 411 Pa. 71, 75 , 190 A.2d 898, 900 (1963), cert. denied, 375 U.S. 920 , 84 S.Ct. 265 , 11 L.Ed.2d 164 (1963); accord, Wilson v. Schnettler, 365 U.S. 381 , 81 S.Ct. 632 , 5 L.Ed.2d 620 (1961).

. Indeed, there is no indication in the record that any show of force was made.

. See Commonwealth v. Carter, 537 Pa. 233 , 643 A.2d 61 (1994), cert. denied, -U.S.-, 115 S.Ct. 1317 , 131 L.Ed.2d 198 (1995) (citing Bosurgi; arrest, in addition to indicating intention to take one into custody, requires that the suspect is "actually restrained of his freedom”); Commonwealth v. Lovette, 498 Pa. 665, 672 , 450 A.2d 975, 978 (1982) , cert. denied, 459 U.S. 1178 , 103 S.Ct. 830 , 74 L.Ed.2d 1025 (1983) (citing Bosurgi, defendant was under arrest after police conducted a pat down search and placed him in the police vehicle); Commonwealth v. Holmes, 482 Pa. 97, 109 , 393 A.2d 397, 403 (1978) (citing Bosurgi, defendant was under arrest when a police officer escorted him to a room and locked the door to the room as it constituted an act showing an intention to place defendant in custody and subjecting him *469 to the control and will of the officer); Steding v. Commonwealth, 480 Pa. 485 , 391 A.2d 989 (1978) (citing Bosurgi; suspect seized when police “stopped him from leaving”); Commonwealth v. Silo, 480 Pa. 15, 22 , 389 A.2d 62, 65 (1978), cert. denied, 439 U.S. 1132 , 99 S.Ct. 1053 , 59 L.Ed.2d 94 (1979) (citing Bosurgi; defendant was not under arrest where only actions by the police officers were their arrival at the hospital and requesting defendant’s clothing from an intensive care nurse; such action did not communicate an intent of taking defendant into custody); Commonwealth v. Farley, 468 Pa. 487, 494 , 364 A.2d 299, 302 (1976) (citing Bosurgi ; arrest occurred as defendant was subject to control of officers following a neighborhood squabble which police officers responded to because defendant was not free to refuse to comply with police orders taking him into custody or free to leave police station once he arrived); Commonwealth v. Murray, 460 Pa. 53, 60 , 331 A.2d 414, 417 (1975) (citing Bosurgi; seizure occurred where individual proceeding in an automobile was forced to stop at police discretion); Commonwealth v. Richards, 458 Pa. 455, 459 , 327 A.2d 63, 64 (1974) (citing Bosurgi ; notwithstanding that defendant agreed to accompany police officer to station, he was under arrest since he submitted to the officer’s restraint when upon becoming ill defendant was taken to the hospital where a police officer was instructed to and did remain with him at all times during a six hour period and then returned him to the station where defendant refused to participate in any further discussions); Commonwealth ex rel. Knowles v. Lester, 456 Pa. 423, 426 , 321 A.2d 637, 639 (1974) (citing Bosurgi; lodging of a detainer against a person already in-custody is an additional restraint upon liberty and therefore an arrest); Commonwealth v. Daniels, 455 Pa. 552, 555 , 317 A.2d 237, 238 (1974) (citing Bosurgi; suspect was under arrest notwithstanding that he voluntarily accompanied police to headquarters for questioning where suspect was subject to the will of the officers and because he was not truly free to leave upon failing a polygraph test); Commonwealth v. Sharpe, 449 Pa. 35, 41 , 296 A.2d 519 (1972) (citing Bosurgi; suspect was under arrest when ordered to stop and, submitting to such an order, approached police car).

. See Commonwealth v. Haggerty, 495 Pa. 612 , 435 A.2d 174 (1981) (detention of suspect who consented to being transported to police barracks to answer questions, did not become custodial until after suspect made admissions of guilt during polygraph test); Commonwealth v. Bybel, 399 Pa.Super. 149 , 581 A.2d 1380 (1990), vacated on other grounds, 531 Pa. 68 , 611 A.2d 188 (1992) (defendant was not subject to custodial interrogation rather, he was subject to investigatory detentions where defendant voluntarily went to police station and was not under arrest or subjected to force of threat of force); Commonwealth v. Douglass, 372 Pa.Super. 227 , 539 A.2d 412 (1988), appeal denied, 520 Pa. 595 , 552 A.2d 250 (1988) (detention arising from the consensual transportation of defendant to police barracks for a breathalyzer test constituted only an investigative detention); Commonwealth v. Stubblefield, 413 Pa.Super. 429, 437 , 605 A.2d 799, 803 (1992), appeal denied, 533 Pa. 633 , 621 A.2d 580 (1993) (once police became reasonably suspicious that defendant was involved in criminal activity and then directed defendant to ticket counter to answer questions, mere encounter developed into an investigative stop or detention).

. See Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983); Commonwealth v. Edmiston, 535 Pa. 210, 227 , 634 A.2d 1078, 1088 (1993) (interaction with defendant was mere encounter under which he was under no official compulsion to respond where appellant voluntarily spoke with police and never asked for assistance of an attorney and was never told he did not need attorney); Commonwealth v. Lidge, 399 Pa.Super. 360 , 582 A.2d 383 (1990), appeal denied, 527 Pa. *471 598 , 589 A.2d 689 (1991) (interaction between defendant who engaged in a consensual conversation in a public place with police officers, did not rise to investigative detention because defendant was not detained in any manner).