Jermaine, In Interest of

• Decision Date: 20 December 1990
• Citation: 582 A.2d 1058,399 Pa.Super. 503
• Parties: In the Interest of Kathleen JERMAINE. Appeal of COMMONWEALTH.
• Court: Pennsylvania Superior Court

Page 1058

582 A.2d 1058

399 Pa.Super. 503

In the Interest of Kathleen JERMAINE.

Appeal of COMMONWEALTH.

Superior Court of Pennsylvania.

Argued March 29, 1990.

Filed Oct. 22, 1990.

Reargument Denied Dec. 20, 1990.

Bradley Bridge, Asst. Public Defender, Philadelphia, for appellee.

Deborah Fleisher, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Before WIEAND, BECK and POPOVICH, JJ.

WIEAND, Judge:

Where a police officer, without show of force, approaches a juvenile in a public railroad station and asks her questions and she, without coercion, consents to a search of the bag which she is carrying, are the drugs found in her bag subject to suppression as the fruits of unlawful police conduct? The trial court held that the juvenile, because of her youth, "was not of an age where consent was freely given" and suppressed the drugs found in her bag. After careful review, we reverse.

In reviewing an appeal taken by the Commonwealth from an order suppressing evidence,

we must consider only the evidence of the defendant's witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court's findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.

Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988). See also: Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985); Commonwealth v. Elliott, 376 Pa.Super. 536, 543, 546 A.2d 654, 657 (1988).

The only testimony at the suppression hearing was elicited from Ronald Bason, an Amtrak Police Officer. He said that on February 8, 1989, at or about 4:25 p.m., he had received information from Sergeant Ulrach, an Amtrak Narcotics Officer at Penn Station, in New York City, that a young female suspected of carrying narcotics, had boarded a train bound for Philadelphia's 30th Street Station. The suspect was described as "a black female, approximately eighteen (18) to twenty-three (23) years old, one hundred twenty (120) pounds, 5'7"'', black medium length kinky hair, wearing a blue jean jacket, blue jean coat, black sneakers[,] ... a brown muslim type cap, carrying a black shoulder bag, and a white paper bag." The basis for Ulrach's suspicion was repeated by Bason as follows:

Officer Ulrach relayed to me he observed this individual at Penn Station, New York purchase a one-way ticket to 30th Street with cash. This individual then waited for the second call of the train before boarding.

Officer Ulrach told me this individual appeared to be nervous and concerned with his presence when she appeared to notice him standing there.

This individual then got up and walked to the train with Officer Ulrach following behind. As she was walking, she constantly kept looking over her shoulder at Officer Ulrach until she boarded the train. Upon sitting herself in the train, Officer Ulrach walked through the same car of the train which she was in. She remained in constant contact, eye contact, with him. Officer Ulrach exited the train and stood on the platform and positioned himself to her rear.

At that time, he observed her make a noticeable effort to keep eye contact with him.

When the train arrived at the 30th Street Station at 5:09 p.m., Bason, who was in plain clothes, was able to identify the suspect as she walked through the concourse. She was constantly looking around her and appeared to be very nervous. As she approached the Market Street exit, Bason, together with a second officer, walked up to her, identified himself as a police officer and asked if he could speak with her. He described the subsequent events as follows:

She said, "Yeah." I then asked her, "Did you just come in on a train," and she said, "Yeah."

I asked her, "Can I ask you where you came from," and she said, "New York." I asked her, "Do you have a train ticket or a receipt," and she said, "No." I asked her if she had any identification and she said no. I asked her what her name was and she said Kathleen Jermaine.

At this point she said, "Can you tell me why you're stopping me because I did not do nothing." At that time I informed her that I was a part of the Narcotics Interdiction Team, a team that was going to stop the flow of narcotics in Philadelphia by way of Amtrak trains.

I asked her, "Would you give me consent to search your bag," and she just looked at me and she was also trembling very nervously. She did not say anything.

I then asked her again, "Miss, would you give me consent to search your bag." She put her head down and said, "Yes," and handed me her bag. At that point I opened the bag and I found a brown paper bag. Upon opening the brown paper bag, there was a plastic bag which contained a large amount of white powdery substance, whcch [sic] also was in the form of chunks.

Through my experience, I recognized this as possibly being cocaine.

I advised the defendant that she was under arrest.

During Bason's conversation with the girl, the second officer, who was also in plain clothes, stood about seven feet behind the girl.

The suppression court, in its opinion suppressing the contraband, reasoned that the police had lacked "reasonable suspicion" to believe that Jermaine was transporting drugs and that the stop, therefore, was unlawful. After the Commonwealth requested reconsideration of the court's initial suppression order, the court concluded that the juvenile's apparent consent to a search of her bag had been vitiated by her youth and the presence of the police. The Commonwealth, on appeal, ¹ argues that the encounter between Bason and Jermaine did not rise to an investigatory stop and did not implicate the juvenile's Fourth Amendment rights. However, even if it did amount to an investigatory stop, the Commonwealth argues, Jermaine voluntarily consented to the search of her bag.

Not every encounter between a citizen and the police is so intrusive as to trigger the protections provided by the Fourth Amendment to the United States Constitution. See: Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Douglass, 372 Pa.Super. 227, 238, 539 A.2d 412, 417 (1988). There is nothing in the Constitution which prevents a policeman from approaching a person on a public street or in a public place in order to make inquiries of that person. Commonwealth v. Brown, 388 Pa.Super. 187, 190, 565 A.2d 177, 178 (1989). See also: Terry v. Ohio, supra at 34, 88 S.Ct. at 1886, 20 L.Ed.2d at 913 (White, J. concurring); Commonwealth v. Hall, 475 Pa. 482, 488, 380 A.2d 1238, 1241-1242 (1977); Commonwealth v. Jones, 474 Pa. 364, 370, 378 A.2d 835, 838 (1977); Commonwealth v. Williams, 298 Pa.Super. 466, 469, 444 A.2d 1278, 1279 (1982). "A seizure of a person sufficient to trigger the protections of the Fourth Amendment occurs 'only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.' " Commonwealth v. Ellis, 379 Pa.Super. 337, 354, 549 A.2d 1323, 1331 (1988), quoting Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565, 572 (1988). See also: INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247, 255 (1984); Commonwealth v. Jones, supra 474 Pa. at 372-373, 378 A.2d at 840; Commonwealth v. Williams, supra 298 Pa.Super. at 469-470, 444 A.2d at 1279. Factors to be considered in determining whether an encounter with police rises to the level of a seizure of the person include "whether the officer makes a show of authority or exercises force, the officer's demeanor and manner of expression, the location, and the content of any interrogatories or statements are relevant to the determination." Commonwealth v. Williams, supra at 470, 444 A.2d at 1279. See also: Commonwealth v. Jones, supra 474 Pa. at 371-372, 378 A.2d at 838-840.

The United States Supreme Court has elaborated on the difference between a "mere encounter" and a seizure of the person which implicates the Fourth Amendment in the following manner:

We adhere to the view that a person is "seized" only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." United States v. Martinez-Fuerte, 428 US 543, 554, 49 L Ed 2d 1116, 96 S Ct 3074 [3081 (1976) ]. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.

Moreover, characterizing every street encounter between a citizen and the police as a "seizure," while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. "Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 US 503, 515, [10 L Ed 2d 513, 83 S Ct 1336, 1344 (1963) ]." Schneckloth v. Bustamonte, 412 US , at 225, 36 L Ed 2d 854, 93 S Ct 2041 [20...