concurring and dissenting.
Initially, I agree with the dissent that the record is inadequate at this time to review and support any analysis on the merits of the issue presented. Having said so, I, like my colleagues, will address the merits.
As to the result reached by the majority, I concur in that result only. I believe the dissent’s analysis that the stop was a continuing seizure in the form of an investigatory detention is the correct analysis under the constitutional law of this Commonwealth as interpreted by our'supreme court. However, on the facts of this case, I believe the trial court’s finding that the police officer had information from a confidential informant that appellant might be involved in the trafficking of drugs is enough reasonable suspicion for at least continued questioning of appellant. Therefore, the officer was justified in asking what was in the bags, and appellant was not free to leave. Whether this information would have been sufficient to support a warrant was no longer relevant after appellant agreed to allow the officer to search his bag. However, having stated this, I agree with the dissent’s analysis regarding the so-called “fírst-tell-then-ask” rule. I do so based on the Pennsylvania constitutional analysis presented by the dissent, Tout also based on a fair balancing of the interests of the police in discovering criminal activity, and the interests of innocent travelers in their privacy. As set forth by Justice Ginsberg in concurrence in Ohio v. Robinette, — U.S. —, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996):
From their unique vantage point, Ohio’s courts observed that traffic stops in the State were regularly giving way to contraband searches, characterized as consensual, even when officers had no reason to suspect illegal activity. One Ohio appellate court noted: ‘[Hjundreds, and perhaps thousands of Ohio citizens are being routinely delayed in their travels and asked to relinquish to uniformed police officers their right to privacy in their automobiles and luggage, sometimes for no better reason than to provide an officer the opportunity to “practice” his drug interdiction, technique.’ 93 Ohio App.3d, at 594, 639 N.E.2d, at 503 (footnote omitted).
The fírst-tell-then-ask rule seems to be a prophylactic measure not so much extracted from the text of any constitutional provision as crafted by the Ohio Supreme Court to reduce the number of violations of textually guaranteed rights. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), this Court announced a similarly motivated rule as a minimal national requirement without suggesting that the text of the Federal Constitution required the precise measures the Court’s opinion set forth. See id., at 467 [86 S.Ct. *1281at 1624] (‘[T]he Constitution [does not] necessarily requir[e] adherence to any particular solution’ to the problems associated with custodial interrogations.); see also Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285 [1291-92], 84 L.Ed.2d 222 (1985) (‘The Miranda exclusionary rule ... sweeps more broadly than the Fifth Amendment itself.’). Although all parts of the United States fall within this Court’s domain, the Ohio Supreme Court is not similarly situated. That court can declare prophylactic rules governing the conduct of officials in Ohio, but it cannot command the police forces of sister States. The very ease with which the Court today disposes of the federal leg of the Ohio Supreme Court’s decision strengthens my impression that the Ohio Supreme Court saw its rule as a measure made for Ohio, designed to reinforce in that State the right of the people to be secure against unreasonable searches and seizures.
Id. at -, -, 117 S.Ct. at 422, 423.
By the same analysis, it is within our province to effectuate such a rule for Pennsylvania, and such a rule serves to accommodate the competing and important interests cited above. This court should issue a clear-cut instruction to police officers that they must first inform the motorist that he or she is free to go before the officers engage in a consensual search of a vehicle or its contents at the conclusion of a traffic stop when the officers have no other reasonable or articula-ble suspicion of criminal activity.
Hence, while I agree with the dissent’s constitutional analysis, I disagree that under the facts of this ease, the continued detention was unlawful, thereby rendering the consensual search invalid. As a result, I would affirm the judgment of sentence.