Com. v. Boswell

• Decision Date: 24 November 1998
• Citation: 721 A.2d 336,554 Pa. 275
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ramona BOSWELL, Appellant.
• Court: Pennsylvania Supreme Court

721 A.2d 336

554 Pa. 275

COMMONWEALTH of Pennsylvania, Appellee, v. Ramona BOSWELL, Appellant.

Supreme Court of Pennsylvania.

Argued October 23, 1997.

Decided November 24, 1998.

John W. Packel, Owen Larrabee, Philadelphia, for appellant.

Catherine Marshall, Mary L. Porto, Philadelphia, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

ORDER

PER CURIAM:

The Court being equally divided, the Order of the Superior Court is affirmed.

Justice NEWMAN files an opinion in support of affirmance in which Justice CAPPY and CASTILLE join.

Justice NIGRO files an opinion in support of reversal in which Chief Justice FLAHERTY and Justice ZAPPALA join.

OPINION IN SUPPORT OF AFFIRMANCE

NEWMAN, Justice.

Ramona Boswell (Boswell) appeals from the Superior Court's Order, which reversed the suppression of evidence seized during a drug interdiction program at the Philadelphia International Airport, and remanded for further proceedings. The issue before us is whether the interaction between Boswell and several officers at the airport constituted a "seizure." For the reasons set forth below, we affirm the Order of the Superior Court.

FACTS AND PROCEDURAL HISTORY

A drug interdiction unit of the Pennsylvania State Police, Bureau of Drug Enforcement Tactical Narcotics was on duty at the Philadelphia International Airport on September 23, 1994. The purpose of the drug interdiction unit was to observe and investigate travelers who arrive from "source cities." "Source cities" are those locations from which bulk quantities of drugs are subdivided and distributed to other locations.

Trooper William Knightly, a member of the unit, was on duty on September 23, 1994, when U.S. Air flight 412 arrived at approximately 6:00 a.m. Flight 412 was a nonstop flight from Los Angeles, California (a source city) to Philadelphia. Trooper Knightly observed the departing passengers, including Boswell. He testified that when Boswell exited the plane, she appeared nervous. She continuously looked around, repeatedly looked over her shoulder, and walked unusually slowly down the corridor toward the baggage claim area. Trooper Knightly, together with two other members of his unit and two officers from the Philadelphia Police Department, followed Boswell to the baggage claim area. All of the officers were dressed in plain clothes and did not display their weapons.

Boswell retrieved a gray tweed suitcase, which a skycap carried. The officers continued to follow Boswell when she and the skycap exited the airport and proceeded to walk down the concourse. Officer Howard, a member of the Philadelphia Police Department, and Trooper Knightly approached Boswell and stood approximately two to three feet in front of her. Two other officers stood in the vicinity behind them and another officer stood off to the side. Directly behind Boswell was the walkway to the next terminal and there was a wall "a couple of feet" away to one side of Boswell. On the other side was the roadway for taxis and buses. The officers immediately identified themselves as law enforcement officers and displayed their badges. There is no indication that Boswell knew that the other officers standing in the vicinity were present.

Officer Howard asked Boswell if they could speak with her and she agreed. He then inquired whether she had been travelling. She responded that she had been travelling, and that she had arrived from Los Angeles. He requested to see her ticket, which she gave him. The ticket verified that Boswell had arrived on the direct flight from Los Angeles, but was in the name of Crystal Roger Parker. The officers were unaware at this point that the ticket was in a name other than Boswell's true name. Officer Howard pointed to the gray tweed suitcase and asked if it was Boswell's bag. She said that it was.

Trooper Knightly testified that the following exchange then took place between Officer Howard and Boswell:

A: Officer Howard pointed down at the bag and said: "Is this your bag?" She stated, "Yes, it is." Officer Howard then asked: "Would you mind if I take a look inside this bag?" At that time, she said: "Yes."

The Court: Wait a minute, hold it. He said: "Would you mind if I took a look inside this bag, and she said: "Yes," meaning that she would mind, right?"

A: No, that he could do it.

Notes of Testimony (N.T.), November 11, 1994, at 20-21. On cross-examination, Trooper Knightly clarified that when asked if she would mind if they looked in her bag, she said, "Go ahead." N.T. at 35. He stated that he could not recall her exact words, but that she answered in the affirmative. Id.

Boswell told the officers that she did not have the key to the lock on the suitcase, nor did she have any identification. As Officer Howard was opening the lock with a pen, Boswell told Trooper Knightly that someone else had packed the bag, and asked her to deliver it to Philadelphia. She also told him that she did not pay for the ticket and her name was not on the ticket. After successfully opening the lock, Officer Howard discovered nine packages of marijuana wrapped in cellophane in the suitcase. The officers then placed Boswell under arrest, and charged her with knowingly and intentionally possessing a controlled substance,¹ and possession of a controlled substance with intent to deliver.²

On November 11, 1994, Boswell made a motion to suppress the evidence in the Municipal Court of Philadelphia (suppression court). The Commonwealth called Trooper Knightly as a witness and Boswell did not present any evidence. The suppression court granted the motion. The Commonwealth appealed to the Court of Common Pleas by filing a Petition for a Writ of Certiorari pursuant to 42 Pa.C.S. § 934. The Court of Common Pleas denied the Commonwealth's appeal, thereby affirming the suppression court's Order on March 22, 1995.

The Commonwealth certified in good faith that the suppression of the evidence terminated or substantially handicapped its prosecution, and appealed to the Superior Court. 42 Pa.C.S. § 5105; Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985). The Superior Court reversed the suppression of the evidence after concluding that a seizure did not take place. We granted Boswell's Petition for Allowance of Appeal to decide whether the police action rose to the level of a seizure.

DISCUSSION

When the Commonwealth appeals an order suppressing evidence, we apply the following standard of review:

[W]e consider only the evidence of the defendant's witnesses and the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. We are bound by the [suppression] court's findings of fact if they are supported by the record, but we must examine any legal conclusions drawn from those facts.

Commonwealth v. Pickron, 535 Pa. 241, 246, 634 A.2d 1093, 1096 (1993). Since Boswell did not present any witnesses during the suppression hearing, we look only to the Commonwealth's evidence. With this standard in mind, we must decide whether the officers' encounter with Boswell constituted a mere encounter, an investigative detention, or a seizure. Commonwealth v. Ellis, 541 Pa. 285, 293-94, 662 A.2d 1043, 1047-48 (1995). If we conclude that it was more than a mere encounter, we will examine whether the police possessed reasonable suspicion that she was engaged in criminal activity, or whether they had probable cause. Id.

The Fourth Amendment of the United States Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures...." Article I, § 8 of the Pennsylvania Constitution similarly provides, in part: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures...."³ No constitutional provision prohibits police officers from approaching a citizen in public to make inquiries of them. The United States Supreme Court has stated that "the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate." Florida v. Bostick, 501 U.S. 429, 431, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Consequently, not every encounter is so intrusive so as to trigger constitutional protections. Terry v. Ohio, 392 U.S. 1, 20, n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); In the Interest of Jermaine, 399 Pa.Super. 503, 582 A.2d 1058 (1990),allocatur denied, 530 Pa. 643, 607 A.2d 253 (1992). It is only when the officer, by means of physical force, or by displaying or asserting authority, restrains the liberty of the citizen that a "seizure" occurs. Terry, at 20, n. 16, 88 S.Ct. 1868. "`[A]ny curtailment of a person's liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.'" Commonwealth v. Lewis, 535 Pa. 501, 636 A.2d 619 (1994) (quoting Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980)).

Interaction between police and citizens may be characterized as a "mere encounter," an "investigative detention," or a "custodial detention." Police may engage in a mere encounter absent any suspicion of criminal activity, and the citizen is not required to stop or to respond. Commonwealth v. Vasquez, 703 A.2d 25, 30 (Pa.Super. 1997). If the police action becomes too intrusive, a mere encounter may escalate into an investigatory stop or a seizure. Commonwealth v. Jackson, 428 Pa.Super. 246, 249, 630 A.2d 1231, 1233 (1993). If the interaction rises to the level of an investigative detention, the police must possess reasonable suspicion that criminal activity is afoot, and the citizen is subjected to a stop and a period of detention. Id. Probable cause must support a custodial detention or arrest. Id...