Com. v. Harper

• Decision Date: 16 June 1992
• Citation: 611 A.2d 1211,416 Pa.Super. 608
• Parties: COMMONWEALTH of Pennsylvania v. Daniel HARPER, Appellant.
• Court: Pennsylvania Superior Court

Page 1211

611 A.2d 1211

416 Pa.Super. 608

COMMONWEALTH of Pennsylvania v. Daniel HARPER, Appellant.

Superior Court of Pennsylvania.

Argued March 19, 1992.

Filed June 16, 1992.

Gregory H. Chelak, Hawley, for appellant.

Curtis J. Rogers, Asst. Dist. Atty., Stroudsburg, for Com., appellee.

Before CAVANAUGH, OLSZEWSKI and BECK, JJ.

BECK, Judge.

The issue we explore, inter alia, is the fourth amendment meaning of "seizure of the person" after the United States Supreme Court's decision in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

This is an appeal from the judgment of sentence imposed upon Daniel Harper after a jury convicted him of one count of possession with intent to deliver cocaine and one count of simple possession of cocaine. Appellant seeks relief on three grounds. First, he argues that the trial court erred in denying his motion to suppress evidence. Second, he argues that the evidence was insufficient to sustain his conviction. Finally, appellant contends that the trial court erred in sentencing him under the mandatory minimum sentencing guidelines of the sentencing code without allowing him the opportunity to present evidence, at the sentencing stage, on the amount of cocaine actually in his possession. We conclude that appellant is not entitled to relief and we affirm the judgment of sentence.

The evidence upon which appellant was convicted was as follows. Police officers in Stroudsburg, Pennsylvania were working in a special narcotics interdiction unit designed to apprehend narcotics traffickers at transportation terminals. Agent Ronald Paret and a partner were assigned to this unit and were watching passengers at the Martz Trailways Bus Terminal in Stroudsburg. Agent Paret saw appellant and his companion purchase round trip bus tickets to New York at about 4 P.M. on April 11, 1990, and board a bus to New York City. Neither was carrying any luggage. Agent Paret had no other information regarding the two individuals, nor did he know when they would be returning to Stroudsburg.

However, to follow-up on the investigation, Agent Paret returned to the bus terminal just past midnight to see who, if anyone, got off the bus from New York City. He watched the passengers disembark and saw appellant and his companion get off the bus and walk toward him. Paret, who was not in uniform at the time, made eye contact with the two men at which point both men turned in the opposite direction and began a "very fast-paced walk" away from the officer. As they walked away, Agent Paret approached them and identified himself as a police officer. Appellant and the other man broke into a run, rounded the corner and headed for the rear of the building. The police officer ran after them and as he followed them, he saw appellant take off the warm-up jacket he was wearing and throw it down. A moment later appellant did the same with a blue wool hat he was wearing. Immediately thereafter, Paret lost sight of appellant because he ran between some houses.

Having temporarily lost sight of appellant, Paret circled back and retrieved the discarded items of clothing. Alongside the warm-up jacket, Paret found a clear plastic bag containing white powder. The hat also contained a small bag of white powder. Meanwhile, other police officers had detained appellant. Agent Paret walked over to where appellant was stopped and advised him that he was under arrest. The white powder tested positive for cocaine.

The bags contained a combined total of 11.5 grams of cocaine. At trial, Agent Paret testified that the street value of the drugs seized was about twelve hundred dollars ($1,200.00). Agent Paret testified that in his experience, this quantity of cocaine was too large to be consistent with purely personal use. He also stated that cocaine for personal use was available in Stroudsburg and that, given the circumstances of appellant's round trip journey to New York to buy the drugs in bulk, it was his expert opinion that the drugs were possessed for resale.

Appellant challenges the trial court's refusal to suppress the evidence, i.e., the cocaine discarded by him and recovered by the police. Appellant argues that since Agent Paret had neither probable cause to arrest him nor reasonable suspicion to effect an investigatory stop, the cocaine must be excluded as fruits of an unconstitutional seizure of his person. The trial court found that appellant's activities upon seeing Agent Paret gave rise to a reasonable suspicion that criminal activity was afoot and that therefore the drugs were the fruits of a reasonable stop. In fact, as a result of a recent and very similar United States Supreme Court case, California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), our resolution of the issue is much simplified. In our view, as will be discussed infra, Hodari D. represents a significant departure from prior fourth amendment cases. However, it is also clear that Hodari is directly on point and governs the result here. Thus, although in necessary reliance on Hodari D. we follow a wholly different rationale from that which the trial court advanced in explaining its ruling, we conclude that the motion to suppress was properly denied. ¹

In Hodari D. a group of young people huddled around a car scattered at the approach of an unmarked police car. The two officers occupying the car were wearing jackets embossed with "police" on the front and back. Hodari D. ran through an alley and one of the officers ran after him. The officer pursuing Hodari took a different route, so that, in a few moments, the officer was running straight at Hodari. Hodari didn't see the officer until he was almost upon him at which point Hodari discarded a small rock which turned out to be crack cocaine. Ultimately, Hodari was tackled, handcuffed and arrested.

The trial court denied Hodari's motion to suppress. The California Court of Appeals reversed, finding that Hodari had been "seized" when he saw the officer running towards him, that the seizure was unreasonable under the fourth amendment and that the cocaine was the fruit of the unlawful seizure. The United States Supreme Court granted certiorari and reversed.

The issue in Hodari, as the Supreme Court stated, was "whether, at the time he dropped the drugs, Hodari had been 'seized' within the meaning of the Fourth Amendment." California v. Hodari D., 499 U.S. at ---, 111 S.Ct. at 1548, 113 L.Ed.2d at 695. ² If so, the drugs would have been the fruits of an unlawful seizure (given the conceded lack of a reasonable basis for the stop--see footnote 2) and should have been suppressed. On the other hand, if Hodari had not been seized when he dropped the drugs, the drugs would have been abandoned by Hodari and lawfully recovered by the police. Under those circumstances, the drugs were admissible. Id., 499 U.S. at ----, 111 S.Ct. at 1548-50, 113 L.Ed.2d at 695-696.

Mr. Justice Scalia delivered the opinion of the Court. He began by noting that the fourth amendment's protection against "unreasonable ... seizures" includes seizures of the person. The question is what constitutes such a seizure for purposes of the fourth amendment. Clearly, an "application of physical force to restrain movement" is a seizure. Id., 499 U.S. 621, 111 S.Ct. at 1550, 113 L.Ed.2d at 697. However, the Court found that a "seizure" will not result when the police attempt to demonstrate a "show of authority" to an individual who then refuses to capitulate to it. Even though the Court accepted for purposes of the decision that the officer's pursuit of Hodari was a "show of authority" which manifested a call to halt, it also categorically rejected Hodari's argument that this "show of authority", without more, constituted a seizure or a constitutionally cognizable restraint of his liberty. Thus, the Court stated:

The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not.

Id.

Illustrating its point with respect to what is not a seizure, the Court stressed:

It does not remotely apply, however, to the prospect of a policeman yelling "Stop, in the name of the law!" at a fleeing form that continues to flee. That is not a seizure. Nor can the result [Hodari] wishes to achieve be produced--indirectly, as it were--by suggesting that [the officer's] uncomplied-with show of authority was a common-law arrest, and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.

Id. (footnote omitted; emphasis in original).

The Court concluded simply:

In sum, assuming that [the officer's] pursuit in the present case constituted a "show of authority" enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied.

Id., 499 U.S. 621, 111 S.Ct. at 1552, 113 L.Ed.2d at 699.

As noted above, Hodari substantially narrowed the definition of what constitutes a "seizure" for purposes of fourth amendment protection and in so doing significantly altered the direction of earlier case law. Prior to Hodari it was understood that, while not every approach by a police officer toward a citizen involved an encounter of constitutional dimension, certain signposts were used by the courts to determine whether the intrusion by the police reached the level of a seizure. In re Jermaine, 399 Pa.Super. 503, 508, 582 A.2d 1058, 1060 (1990). Generally, a seizure was thought to have occurred, for purposes of triggering constitutional protection, if the officer "by means of physical force or show of authority, has in some way restrained the...