Com. v. Carroll

• Decision Date: 02 July 1993
• Citation: 427 Pa.Super. 1,628 A.2d 398
• Parties: , 62 USLW 2099 COMMONWEALTH of Pennsylvania, Appellant, v. Richard CARROLL.
• Court: Pennsylvania Superior Court

Page 398

628 A.2d 398

427 Pa.Super. 1, 62 USLW 2099

COMMONWEALTH of Pennsylvania, Appellant, v. Richard CARROLL.

Superior Court of Pennsylvania.

Argued April 19, 1993.

Filed July 2, 1993.

Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Commonwealth, appellant.

Paul M. George, Asst. Public Defender, Philadelphia, for appellee.

Before: CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, BECK, TAMILIA, JOHNSON and HUDOCK, JJ.

CIRILLO, Judge.

This is an appeal by the Commonwealth from a pre-trial order of the Court of Common Pleas of Philadelphia County suppressing the introduction of 47 packets of narcotics at the trial of Richard Carroll. ¹ We reverse.

Carroll was arrested, without a warrant, on November 22, 1989, and charged with possession of a controlled substance and possession of a controlled substance with the intent to deliver.

At 11:21 a.m. on November 22, two uniformed police officers, Joseph Milligan and John Reinecker, while on routine patrol in a marked police vehicle, saw two men standing on the sidewalk of Olive Street, Philadelphia. Officer Reinecker told Officer Milligan he wanted to investigate one of the men, and gave no reason.

Both officers left the patrol car and Officer Reinecker spoke to the man he had suggested investigating. The second man, Carroll, stood with his hands in the pockets of his jacket. Officer Milligan, with his hand over his gun, approached Carroll and started to ask him to take his hands out of his pockets.

Carroll turned and fled into an alley on the west side of Olive Street, slipped and fell in the debris. Officer Milligan followed Carroll and at a distance of a 10 to 15 feet saw two brown tinted, heat-sealed packets containing a white substance fall from Carroll's pocket into the debris in the alley.

Officer Milligan approached Carroll who was still face down in the debris in the alley, drew his gun, and told Carroll to stay on the ground with his hands behind his back. Officer Milligan put handcuffs on the still prone Carroll, arrested him, and searched his coat pockets, finding 45 additional brown tinted packets. Officer Milligan patted Carroll down a second time in a search for weapons and then retrieved the two dropped brown tinted packets from the debris. After Carroll was taken to the police station, a custodial search revealed $404.00 in cash.

The Commonwealth disputes several of the suppression court's findings. The Commonwealth argues Officer Milligan did not have his hand on his gun, that he did not pursue Carroll, and that he did not approach Carroll until after he had fallen and dropped the drugs.

When we review a suppression ruling, we are bound by the reasonable factual findings of the suppression court, Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983), unless we find an abuse of discretion or an error of law. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985). Credibility determinations may not be disturbed on appeal. Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986). We are, therefore, despite the Commonwealth's vigorous argument to the contrary, bound to accept the reasonable factual findings of the suppression court. Hamlin, supra; Whitney, supra.

Under questioning by the assistant district attorney at the suppression hearing Officer Milligan testified that he had his hand on his gun when he approached Carroll.

Q: [A]t what point in what happened did you draw your gun specifically in relationship to where you saw the packets go to the ground?

A: Well, when he started to run, actually I had my hand on the gun because he had his hands in his pockets. But, it happened so fast and I drew my gun as he was laying on the ground and after the packets were on the ground.

When we look at the testimony we are persuaded that the suppression court's finding of fact that Officer Milligan had his hand on his holstered gun when he chased Carroll is reasonable. Hamlin, supra; Whitney, supra.

The question before this court is whether the police officer's pursuit of Carroll was a seizure. If it was not a seizure then the drugs were lawfully found and finding the drugs in these circumstances gave rise to the probable cause to arrest and search Carroll. If the pursuit was a seizure, then when Carroll dropped or discarded the drug packets the abandonment was impermissibly coerced. If the drugs were abandoned after seizure, then the officer must demonstrate that he had either probable cause to make the seizure reasonable or a reasonable suspicion for a Terry stop and frisk.

This case raises the question of whether Pennsylvania will follow the federal constitutional definition of seizure recently adopted in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), or will continue to follow a line of Pennsylvania cases which afford a suspect a greater degree of protection under the state constitution. ²

Seizure under the Fourth Amendment to the U.S. Constitution

Seizure was defined by Justice Stewart in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (plurality opinion) and adopted by the U.S. Supreme Court in Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988): "A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." This has become known as the Mendenhall reasonable person test for when a seizure occurs.

The definition adopted in Chesternut followed from the formulation in Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968), that a seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen."

In Hodari D., supra, the Supreme Court held that pursuing a fleeing suspect is not a seizure for Fourth Amendment purposes; therefore, a rock of cocaine discarded during the pursuit was not the fruit of an illegal seizure and need not be suppressed as evidence at trial.

The more narrow question in Hodari D. was whether a "show of authority" without more is a seizure. The court held that it was not. An arrest requires either physical force or submission to the assertion of authority. Id. 499 U.S. at ----, 111 S.Ct. at 1551. There is no seizure based on show of authority unless it is complied with. Id., citing Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). No search or seizure occurs when a police officer examines abandoned materials, even if the act of abandonment occurs during a police chase. Hodari D., citing Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

In Hodari D., when the officers began their pursuit they did not have a lawful basis for either stopping or arresting the suspects. Hodari D. holds that a show of authority alone is not seizure; only if the subject submits to the show of authority or if the police officer makes contact with the subject is there a seizure. Id. 499 U.S. at ----, 111 S.Ct. at 1548.

Thus, Hodari D. modifies the Mendenhall reasonable person test, a person is seized when he reasonably believes he is not free to leave, to hold that seizure is not effected until an officer has used physical restraint or the citizen has submitted to a show of authority. Since Hodari D., for Fourth Amendment purposes, a show of authority alone is not a seizure.

In the case at hand, under the criteria of Hodari D. there was no seizure at the time the packets of cocaine fell out of Carroll's pockets. There was a "show of authority" without the requisite submission to create a seizure. Hodari D., supra.

Seizure under Art. I, Section 8 of the Pennsylvania Constitution

Finding as we do that the pursuit of Carroll was not a seizure in terms of the Fourth Amendment, Hodari D., supra, we turn now to the question of whether Carroll or the drugs were seized in violation of the Pennsylvania Constitution. The Pennsylvania Constitution may afford greater protections than the U.S. Constitution. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (declining to the adopt the "good faith" exception to the exclusionary rule). It is "important and necessary to undertake an independent analysis of the Pennsylvania Constitution each time a provision of that fundamental document is implicated." Id. at 389, 586 A.2d at 894-95.

The Edmunds court outlined the steps to an independent analysis of state constitutional grounds which are: an examination of the text of the constitutional article, the history of its application, the jurisprudence of the question in other states, and the policy considerations behind the constitutional provision. Id.

Article I, section 8 of the Pennsylvania Constitution provides:

Security from Searches and Seizures

Section 8. The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or thing shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Const. Art. I, § 8.

One of the first Pennsylvania cases to consider the exclusionary rule after Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) made it applicable to the states was Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). In Bosurgi, the Pennsylvania Supreme Court adopted Mapp which prohibits use of evidence which is the product of an unreasonable search or seizure. Id. 411 Pa. at 65, 190 A.2d at 309. The Bosurgi court read Mapp as allowing each state to make an independent assessment of what was a "reasonable search and seizure." Id. 411 Pa. at 65, 190 A.2d at 309. The issue in Bosurgi was whether a warrantless search based on a vague description was reasonable. The court found that it was because the subject acquiesced...