Com. v. Wilmington

• Citation: 729 A.2d 1160
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Marcus A. WILMINGTON, Appellant.
• Decision Date: 31 March 1999
• Court: Superior Court of Pennsylvania

729 A.2d 1160

COMMONWEALTH of Pennsylvania, Appellee, v. Marcus A. WILMINGTON, Appellant.

Superior Court of Pennsylvania.

Argued September 28, 1998.

Filed March 31, 1999.

Robert M. Rosenblum, Stroudsburg, for appellant.

E. David Christine, Jr., Asst. Dist. Atty., East Stroudsburg, for Com., appellee.

Before McEWEN, President Judge, and CAVANAUGH, DEL SOLE, KELLY, EAKIN, JOYCE, STEVENS, SCHILLER, and LALLY-GREEN, JJ.

McEWEN, President Judge.

s 1 This Court granted the petition for reargument filed by the Commonwealth in this case to consider whether the Pennsylvania Constitution prohibits the random stopping of a Greyhound bus at a toll plaza on a rural interstate to permit police officers to conduct a "drug interdiction investigation" in the absence of reasonable suspicion or probable cause to believe that an individual on the bus is transporting narcotics.

s 2 Our study, as well as our resolution of the competing concerns presented by this caseâ eradication of the deadly plague visited upon our society by illicit drugs and the preservation of the sacred freedoms guaranteed to us by the Pennsylvania Constitutionâ is guided by the admonition of our Supreme Court that

[t]he seriousness of the criminal activity under investigation, whether it is the sale of drugs or the commission of a violent crime, can never be used as justification for ignoring or abandoning the constitutional rights of every individual in this Commonwealth to be free from intrusions upon his or her personal liberty absent probable cause.

Commonwealth v. Rodriquez, 532 Pa. 62, 73, 614 A.2d 1378, 1383 (1992).

s 3 We conclude, as set forth hereinafter, that the Greyhound bus was seized by the officers when the driver pulled over at their request and that, in the absence of reasonable suspicion or probable cause, the random stopping of a bus to allow troopers to interrogate the passengers violates Article I, Section 8 of the Pennsylvania Constitution just as surely as the random stopping of automobiles by such troopers â solely for the purpose of questioning occupants of those automobiles as to their identities and itineraries, would violate Article I, Section 8 of the Pennsylvania Constitution. See: Commonwealth v. Sierra, 555 Pa. 170, ___, 723 A.2d 644, 646 (1999)

(Opinion in Support of Affirmance); Commonwealth v. Blouse, 531 Pa. 167, 169, 611 A.2d 1177, 1178 (1992); Commonwealth v. Yashinski, 723 A.2d 1041, 1043 (Pa.Super.1998); Commonwealth v. Pacek, 456 Pa.Super. 578, 691 A.2d 466, 469-470 (1997); Commonwealth v. Zogby, 455 Pa.Super. 621, 689 A.2d 280, 282 (1997),

appeal denied, 548 Pa. 658, 698 A.2d 67 (1997); Commonwealth v. Ziegelmeier, 454 Pa.Super. 330, 685 A.2d 559, 561-562 (1996); Commonwealth v. Trivitt, 437 Pa.Super. 432, 650 A.2d 104, 106 (1994); Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177, 181-182 (1992),

appeal denied, 533 Pa. 598, 617 A.2d 1273 (1992).

s 4 The trial court, when deciding a motion to suppress, is required to conduct a hearing and make findings of fact and conclusions of law determining whether evidence was obtained in violation of a defendant's rights. Commonwealth v. Graham, 554 Pa. 472, 475-477, 721 A.2d 1075, 1077 (1998); Commonwealth v. DeWitt, 530 Pa. 299, 302, 608 A.2d 1030, 1031 (1992); Pa.R.Crim.P. 323. While this Court in general, "[i]n reviewing a suppression court's ruling [is] bound by those factual findings of the suppression court which are supported by the record", Commonwealth v. Sierra, supra at ___, 723 A.2d at 645 (Opinion in Support of Affirmance) ¹, since the trial court in the instant case based its findings solely upon its review of the notes of testimony from the preliminary hearing conducted on December 26, 1996, before District Justice Eyer, "this Court is equally competent to form an opinion as to the facts from the evidence appearing in the record." Commonwealth v. Jones, 457 Pa. 423, 431, 322 A.2d 119, 124 (1974), citing Stanko v. Males, 390 Pa. 281, 135 A.2d 392 (1957); Poelcher v. Poelcher, 366 Pa. 3, 76 A.2d 222 (1950). Accord: Butler County v. Brocker, 455 Pa. 343, 349 n. 8, 314 A.2d 265, 269 n. 8 (1974)

.

s 5 On December 11, 1996, Agent Ronald Paret of the Bureau of Narcotic Investigations of the Office of the Attorney General and Monroe County Detective Kirk Schwartz were standing at the toll booths located at the Delaware Water Gap Toll Plaza on Interstate 80 in Monroe County, for the purpose of randomly stopping commercial buses proceeding through the toll plaza as part of a "drug interdiction operation".

s 6 Appellant was a passenger on a Greyhound bus which had left New York City and was en route to Cleveland, Ohio, when Detective Schwartz, as the bus stopped to pay the toll, asked the driver of the bus, Mr. Prather, if he and Agent Paret could board the bus and conduct an investigation. The driver agreed and was directed to pull the bus over onto the apron past the toll booths. The agents obtained and examined the tickets which had been collected by Mr. Prather, who testified at trial that:

A. Once I had been asked by Detective Schwartz if I minded pulling over, I told them we have drug enforcement agents who are going to get up on the bus and they are going to just routinely go through the bus, I don't know, search it or whatever. I don't know what they are going to â I could not tell them specifically what was going to happen.

Q. How did you tell them that?

A. On the P.A. system that we have on board the bus.

Q. Did you advise any passengers who didn't want this experience that they could leave the bus?

A. No, I didn't. (N.T. 15) (emphasis supplied).

Agent Paret testified at trial that "... when I boarded the bus, I identified myself using the public address system. I picked up the microphone, spoke to the passengers, identified myself. I identified Detective Schwartz as the other person on the bus with me. I told them we were on the bus to conduct a brief drug investigation at that time." (N.T. 47)(emphasis supplied).

s 7 Rule 323(h) of the Pennsylvania Rules of Criminal Procedure places the burden of production as well as the burden of persuasion on the Commonwealth. Commonwealth v. Hamilton, 543 Pa. 612, 614, 673 A.2d 915, 916 (1996); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 144, 239 A.2d 426, 428 (1968). The only evidence concerning the seizure of the bus offered by the Commonwealth was the following portion of the December 26, 1996, preliminary hearing testimony provided by Agent Paret, the sole witness presented at that hearing:

Q. What did you do at approximately 4:15 p.m. that day [December 11, 1996]?

A. At approximately 4:15 p.m., myself, along with County Detective Kirk Schwartz, had occasion to board a Greyhound Bus at that time.

Q. Upon boarding the bus, what did you do?

A. Upon boarding the bus, I made an announcement on the intercom system of the bus. I identified myself as a narcotics agent. I also identified Kirk Schwartz as a county detective. We were both wearing jackets that also identified ourselves. Subsequently, Detective Schwartz went down the aisle ahead of me. He went into the bus bathroom, and I began speaking with the passengers on the bus.

s 8 The trial court, based solely upon its review of the foregoing transcript from the preliminary hearing, then made the following findings of fact:

1. On December 11, 1996, Agent Ronald Paret, a Narcotics Investigator from the Attorney General's Office, and Kirk Schwartz, the County Detective, were involved in drug interdiction surveillance at the Delaware Water Gap Toll Bridge in the Borough of Delaware Water Gap, Monroe County, Pennsylvania.

2. Agent Paret approached the driver of a Greyhound Bus in route from New York to Cleveland, Ohio, and identified himself as a narcotics investigator and asked the bus driver if he could board the bus. The driver consented.

3. When the officers boarded the bus, they attempted to match passengers with carry-on luggage in the overhead luggage racks.

4. Agent Paret asked the defendant if he had any luggage, and the defendant pointed to a white plastic bag on the floor. Agent Paret asked him if he could look at it. The defendant consented. In it were a new pair of blue, white and silver Asics sneakers, size nine.

5. A Saks Fifth Avenue shopping bag, which was located in the overhead rack directly opposite to where the defendant was seated on the bus, was not identified by any of the passengers as belonging to them. When the bag was unclaimed, one of the officers held it up for all the passengers to see and asked if it belonged to anyone. No one responded, including the defendant.

6. Detective Schwartz removed the bag from the bus and searched it. The search disclosed a package of suspected cocaine and a pair of blue jeans in which part of a check, including a Social Security number, was found. The cocaine was found in an Asics shoe box. The shoe box had written language on it indicating that it once held size nine, blue, white and silver sneakers.

s 9 The trial court then concluded, based upon what we view as a misreading of Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), that:

... In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the United States Supreme Court gave its stamp of approval to such practices where bus transportation is involved. Recognizing that the decision when and where to stop a bus is within the sole control of the bus driver and not the passenger, the Supreme Court concluded that any resulting confinement of a passenger is the natural result of his decision to take the bus and not necessarily a result of coercive police conduct. Applying that rationale to the facts in the case at bar, we conclude that the defendant was not seized within the meaning of the Fourth Amendment.

s 10 Thus, while the trial court found that Agent Paret had "detain[ed] the bus on which the defendant was a passenger and examin[ed] the luggage", the trial court, as a result of...