Com. v. Hoak

Decision Date12 August 1997
PartiesCOMMONWEALTH of Pennsylvania v. Mark K. HOAK, Appellant.
CourtPennsylvania Superior Court

Veronica A. Smith, Asst. Public Defender, Harrisburg, for appellant.

Lorinda L. Hinch, Asst. Dist. Atty., Mercer, for Commonwealth, appellee.

Before CAVANAUGH, J., CIRILLO, President Judge Emeritus, POPOVICH, JOHNSON, HUDOCK, FORD ELLIOTT, SAYLOR, EAKIN and SCHILLER, JJ.

EAKIN, Judge.

Mark K. Hoak appeals from the judgment of sentence entered in the Court of Common Pleas of Mercer County following his conviction for possession of marijuana and drug paraphernalia.

The issue before us is whether, after concluding a lawful traffic stop of appellant and stating "you are free to leave," a police officer's follow-up question constituted an investigative detention unsupported by reasonable suspicion, which vitiated appellant's response, an invitation to search. Because we find appellant's consent was given voluntarily and knowingly during a noncoercive encounter, we affirm the judgment of sentence.

The facts are undisputed. Around 1:45 a.m. November 22, 1994, Officer John Miller lawfully stopped appellant for straddling the center line, and driving erratically and with a burned-out taillight. After issuing a warning and returning appellant's driver's license and vehicle registration, Officer Miller told appellant he was free to leave. The officer then asked appellant if he would answer some questions; appellant said he would. The officer asked appellant what was in the luggage and duffle bag in the truck; appellant said, "Dirty clothes. Do you want to look?" When the officer asked, "Do you mind?", appellant said, "No." The officer searched, and found two bags containing marijuana, an envelope containing marijuana seeds and a marijuana cigarette in a stainless steel holder.

Charged with violating 35 P.S. § 780-113(a)(31) and (32), appellant moved to suppress the marijuana and paraphernalia; the trial court denied the motion. After a bench trial, the court convicted appellant of both offenses and sentenced him to a term of not less than twelve days nor more than one year imprisonment and to pay a $25.00 fine. This appeal followed, wherein appellant's sole complaint is the denial of his motion to suppress evidence; he contends his consent to the search was the product of an unlawful detention.

When we review the denial of a suppression motion, we must determine whether the record supports the court's factual findings. Commonwealth v. Abdul-Salaam, 544 Pa. 514, 524, 678 A.2d 342, 347 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 1337, 137 L.Ed.2d 496 (1997). In so doing, we consider only the evidence of the prosecution and so much of the evidence for the defense as, when fairly read in the context of the record as a whole, remains uncontradicted. Id. If the record supports the suppression court's findings, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Id.

Under both federal and state constitutional provisions, people are to be secure in their persons against "unreasonable searches and seizures." Pa. Const. art. I, § 8; U.S. Const. amend. IV; Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996). 1 While appellant claims a violation under both constitutions, he fails to engage in any analysis pursuant to Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), suggesting how, under the instant circumstances, our state constitution provides greater protection than the Fourth Amendment. While the failure to brief Edmunds ' four-prong test is not fatal, Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995), appellant's reliance on state constitutional provisions is at best vague, if articulated at all, and he provides no compelling reason to depart from Fourth Amendment jurisprudence in this case. Appellant's privacy interests--and his ability to cooperate voluntarily with police--are sufficiently protected by a totality-of-the-circumstances analysis.

Not all personal intercourse between police and citizens involves seizures of persons. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); 2 Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996); Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043 (1995). There is no constitutional prohibition against the police questioning an individual in a public place. So long as a reasonable person would feel free to go about his or her business, the encounter is consensual and no reasonable suspicion is required. Bostick, 501 U.S. at 434, 111 S.Ct. at 2386; Matos, 543 Pa. at 461, 672 A.2d at 775; Ellis, 541 Pa. at 292-94, 662 A.2d at 1047. " 'Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.' " Bostick, 501 U.S. at 434, 111 S.Ct. at 2386 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968)); Matos, 543 Pa. at 457-58, 672 A.2d at 774.

Thus, individuals have been seized only if there is an objective reason to believe they are not free to end their conversation with police and proceed on their way. United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); Matos, 543 Pa. at 458-59 n. 7, 672 A.2d at 774 n. 7 (Pennsylvania cases have consistently applied Mendenhall's objective test in determining whether police conduct amounts to a seizure or a mere encounter and are representative of state law pertaining to Article I, Section 8). Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, include

the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Mendenhall, 446 U.S. at 553-54, 100 S.Ct. at 1877. The crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would " 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.' " Bostick, 501 U.S. at 437, 111 S.Ct. at 2387 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988)).

Appellant essentially asks us to find it constitutionally impermissible per se for a police officer to ask questions of, or seek cooperation from, a citizen detained pursuant to a traffic stop. Appellant argues that asking if he "would answer some questions" after being told he is free to leave constituted an investigative detention because any reasonable person in his shoes would not have felt free to take the officer at his word and leave. With such a conclusion we cannot agree.

An objective review of the totality of these circumstances shows the officer issued only a warning, returned appellant's registration and license, and specifically advised him he was free to leave. This clearly communicated to appellant, or to any reasonable person, that all business with him was completed, the traffic stop was over, and he was free to drive away. Appellant's argument ignores these facts. The suggestion of an illegal detention also ignores the complete absence of any evidence that the officer blocked appellant's vehicle or spoke in a threatening tone; indeed, the officer had gratuitously issued a warning instead of a citation, an act connoting friendliness, not menace. The officer did not touch appellant in any way, display a weapon, or demand that appellant do anything; by the time the officer asked if appellant would answer some questions, the only show of authority was the officer's uniform.

Absent some coercive conduct by police, a request for cooperation or consent to search does not automatically convert an undeniably permissible encounter into an illegal seizure any more than the giving of Miranda 3 warnings transforms a non-custodial setting into a custodial one. See, e.g., Commonwealth v. Morgan, 416 Pa.Super. 145, 150 n. 2, 610 A.2d 1013, 1015 n. 2 (1992), alloc. denied, 533 Pa. 618, 619 A.2d 700 (1993) (gratuitously giving Miranda warnings did not transform consensual interrogation into custodial interrogation).

Appellant's position would mean citizens are legally incapable of consenting to a search at any time during or following a traffic stop. This court has held they cannot consent while the officer holds their identification. Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177, alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992). Appellant now asks us to hold they cannot consent after their identification is returned and they are told they are free to go. We reject appellant's dangerously precedential assertion that all post-traffic stop questioning necessarily constitutes detention.

At oral argument, appellant and the Commonwealth cited Ohio v. Robinette, 73 Ohio St.3d 650, 653 N.E.2d 695 (1995) ("Robinette I "), rev'd and remanded, --- U.S. ----, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) ("Robinette II "). 4 Appellant relies on Robinette I to echo his position that any subsequent roadside interaction with police could not be consensual; such interaction, he argues, must be deemed to have been influenced by a lingering authoritative aura of the earlier lawful traffic detention. This postulate assumes a reasonable person must believe the officer was lying when he said "you are free to go," a rather paranoid and legally unjustifiable assumption unsupported by general logic, much less by any articulable facts of record. Appellant just avoided receiving a citation through the good graces of the policeman. In the face of such consideration and courtesy, where are the facts that would cause appellant to disbelieve he was free to go? Where is the coercion that suggests continued detention to a reasonable...

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