Com. v. Lewis

• Decision Date: 28 January 1994
• Citation: 636 A.2d 619,535 Pa. 501
• Parties: , 62 USLW 2547 COMMONWEALTH of Pennsylvania, Appellee, v. Troning Anthony LEWIS, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Eric BRADLEY, Appellant.
• Court: Pennsylvania Supreme Court

Page 619

636 A.2d 619

535 Pa. 501, 62 USLW 2547

COMMONWEALTH of Pennsylvania, Appellee, v.Troning Anthony LEWIS, Appellant.

COMMONWEALTH of Pennsylvania, Appellee, v.Eric BRADLEY, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 29, 1993.

Decided Jan. 28, 1994.

Frederick W. Ulrich, Harrisburg, for Troning Anthony Lewis.

Kathy G. Wingert, Harrisburg, Gloria J. McPherson, Landisburg, William T. Tully, Richard E. Guida, Harrisburg, for Com.

Thomas A. Thornton, Harrisburg, for Eric Bradley.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.

OPINION

ZAPPALA, Justice.

Troning Lewis and Eric Bradley, the Appellants in these consolidated appeals, were convicted by a jury of possession of cocaine with the intent to deliver and conspiracy, 407 Pa.Super. 186, 595 A.2d 593.¹The Appellants moved to suppress the introduction of statements and physical evidence at trial on the ground that the evidence had been obtained in an unconstitutional search and seizure by agents of Amtrak and Harrisburg police officers.The trial court denied the suppression motions and the Superior Court affirmed the judgments of sentence.We granted allocatur to determine whether the Appellants' rights under the Fourth Amendment of the United States ConstitutionandArticle I, Section 8 of the Pennsylvania Constitution were violated, and to examine the use of a "drug courier profile" as a law enforcement technique.We now reverse the order of the Superior Court and vacate the judgments of sentence.

"When we review the ruling of a suppression courtwe must determine whether the factual findings are supported by the record.When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.We are bound by the facts as are found and may reverse the suppression court only if the legal conclusions drawn from those facts are in error."Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111, 112(1985), cert. den.474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297(1985)(Citations omitted.).

At the suppression hearing, Officer John W. Ciupinski, an Amtrak police officer, testified that he had received two days of extensive training in a drug interdiction program prior to the Appellants' arrests.The participants in the program were taught to identify potential couriers of narcotics by using a "drug courier profile"--a loosely defined set of singularly innocuous characteristics.Officer Ciupinski identified the following as characteristics of the drug courier profile: (1) travel to and from an import city for illegal drugs, e.g., New York City, Miami, and Los Angeles; (2) payment for tickets in cash; (3) frequent trips with quick returns; (4) displays of large amounts of cash; (5) alertness to surroundings; and (6) lack of luggage or packages.

Officer Ciupinski had discussed the drug courier profile with Amtrak ticket agents, informing them to be on the alert for individuals who displayed large amounts of money and made frequent trips to source cities.Approximately one week before the Appellants were arrested, an unidentified ticket agent told Officer Ciupinski that two black men had paid cash at his ticket window for a round trip ticket to New York City.The ticket agent, who did not testify at the suppression hearing or at trial, told Officer Ciupinski that the men wanted to return as soon as possible and were unconcerned that the cost of the tickets would be higher.The ticket agent indicated that the men had a bundle of money and that they had no luggage.

On the morning of September 22, 1990, the same ticket agent informed Officer Ciupinski that the two men had appeared again at his window and made a cash purchase of four one-way tickets to New York.The agent indicated that they had a "big bundle of money" to pay for the tickets.Each ticket cost $41.50.Officer Ciupinski observed the two men waiting for the train.Mr. Lewis was lying on a bench, but Mr. Bradley appeared apprehensive.Officer Ciupinski then contacted Detective William Holland of the Harrisburg Police Department to discuss the situation.The officers decided to meet the train on its return and to approach the men at that time.

When the Appellants returned, they were confronted by four officers--Officer Ciupinski and his partner, Officer Crandall, Detective Holland and his partner, Detective Arnold.Officer Ciupinski and Detective Holland stood side by side.Their partners followed behind them to act as backup.None of the officers were in uniform.The officers identified themselves and informed the Appellants that they were "working narcotics and doing an interdiction program checking for couriers bringing drugs back from New York."

The officers asked whether the Appellants would mind speaking with them.The Appellants then backed away and the four officers followed.They continued to back away for five to ten feet until they were backed up to a wall with benches in front.They remained standing until backed up to the benches.

Officer Ciupinski informed them that they had been observed traveling between New York and Harrisburg and asked for an explanation.Mr. Lewis responded that he traveled to meet with his probation officer.When asked whether they lived in Harrisburg or New York, both indicated New York.Mr. Bradley said that he was visiting his aunt and gave an address which prompted Detective Holland to respond that there was no such address.

Officer Ciupinski testified that both men appeared extremely nervous and that Mr. Bradley continually moved his hands around his sides and towards his back.Officer Ciupinski told him to refrain from moving his hands.Questioning continued and when asked what he was on probation for, Mr. Lewis indicated a weapons violation.Officer Ciupinski testified that he asked them if they were carrying any weapons and Mr. Bradley's eyes "became like saucers."They then talked for a couple of minutes.

In the drug interdiction program, Officer Ciupinski learned that many drug couriers carry weapons.With this in mind, the officers decided to search the Appellants for weapons.No weapon was found on Mr. Lewis, but Mr. Bradley was carrying a pistol.The men were arrested and given Miranda warnings en route to the officers' headquarters in the station.Another search was conducted on the two men, which uncovered a packet of cocaine in Mr. Lewis' sock.During questioning, Mr. Bradley told the officers that he found the handgun on the train and Mr. Lewis said that they had purchased cocaine for $5,000 in New York and intended to sell it for $15,000 in Harrisburg.

The Appellants contend that the trial court erred in denying their suppression motions because the police officers did not have reasonable suspicion or probable cause to conduct an investigatory stop and the search and seizure was invalid under the federal and state constitutions.The Superior Court rejected this argument, holding that the initial questioning of the Appellants by the police officers was not an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968).The Superior Court reasoned that even if an investigatory stop did occur, the conduct of the police officers was permissible because the circumstances gave rise to a reasonable suspicion that the Appellants fit within the drug courier profile.The Superior Court determined that the officers had a reasonable basis to make an investigatory stop which satisfied the guidelines established in United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1(1989).We hold that the investigatory stop of the Appellants was not supported by reasonable suspicion or probable cause and violated the Fourth Amendment of the U.S. ConstitutionandArticle I, § 8 of the Pennsylvania Constitution.

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and, effects, against unreasonable searches and seizures, shall not be violated....""No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."Terry v. Ohio, supra, 392 U.S. at 8, 88 S.Ct. at 1873, citingUnion Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734(1891).The Fourth Amendment's prohibition of searches and seizures that are unsupported by objective justification governs all seizures of the person, including seizures that involve only a brief detention.

The U.S. Supreme Court stated in Terry that not all personal contacts or exchanges between police officers and individuals involve "seizures" of persons; however, not every police interrogation may be dismissed as personal intercourse.When an officer, by means of physical force or show of authority, has restrained the liberty of an individual, a "seizure" has occurred."[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."Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890(1980)(Citations omitted.).

In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389(1991), the Court addressed the issue whether the Fourth Amendment permits police officers to approach individuals on a bus to ask them questions and to request consent to search their luggage.As part of a drug interdiction program, the Sheriff's Department of Broward County, Florida, routinely boarded buses at scheduled stops and asked passengers for permission to search their luggage.Two officers boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale.The officers singled...