Commonwealth v. Tindell

FORD ELLIOTT, Judge,

concurring:

While I agree with the result reached by the majority, that the evidence against appellant should not be suppressed, I most respectfully disagree with the route utilized by my colleagues to arrive at that result.

Because I am bound by prior decisions of this court and the United States Supreme Court, I am required to accept that the so-called “drug courier profile” vests law enforcement officers with the requisite reasonable suspicion that criminal activity is afoot to justify stopping persons in public airports and posing questions to them. United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Commonwealth v. Lidge, 399 Pa.Super. 360, 582 A.2d 383 (1990), appeal denied, 527 Pa. 598, 589 A.2d 689 (1991) ; In the Interest of Jermaine, 399 Pa.Super. 503, 582 A.2d 1058 (1990), appeal denied, 530 Pa. 643, 607 A.2d 253 (1992).1

*407I agree with the majority that, assuming the validity of the drug courier profile, the police were acting lawfully when they stopped appellant and asked her questions. Characterizing the initial “stop” as a mere encounter does not change the fact that by utilizing the drug courier profile the police also had the reasonable suspicion required for an investigatory detention. See Sokolow, supra; Royer, supra and Mendenhall, supra.2 However, where I must part from the majority, is in *408its determination that at the point where the “mere encounter” blossomed into an “investigatory detention,” still no “seizure” had occurred within the meaning of the Fourth Amendment.

I completely agree that when the police recognized appellant’s name from a prior drug investigation wherein she had been implicated as a possible drug courier, they not only had the requisite reasonable suspicion for continued investigatory detention, but they also had probable cause to obtain a search warrant for her person. Cf. Commonwealth v. Martin, — Pa. -, 626 A.2d 556 (1993) (search of satchel involved search of “person” and probable cause was necessary for canine sniff of satchel). The police testified to as much at the suppression hearing:

BY MR. FITZSIMMONS:
Q. Let me ask you this, sir. Did you ever communicate to Ms. Tindell anything about a search warrant or anything about that, sir?
A. I believe after Officer Llewellyn got there we did mention it. It was in the report.
Q. What exactly did you tell her with respect to that, sir?
A. I had stated that we, myself and Detective Zilch, believed that we had enough information, had enough probable cause to attempt to get a search warrant, and as I said, you know, she could refuse the pat down, she was free to refuse the pat down, but if she refused the pat down that we believed we had enough and we would attempt to get the search warrant for her person.
Q. That’s something that you communicated to her?
*409A. That’s something I communicated, yes, sir.

(Notes of testimony, 10/7/91 at 30.)

Clearly, appellant was not free to leave, and this was communicated to appellant. If she was not free to leave, then she was “seized” for constitutional purposes. In the context of the events of this case, the police officers informing appellant that she was not required to submit to a pat down search, did not mean that she wouldn’t be searched; but rather, that if she did not consent they would get a warrant. Obviously, under the circumstances, appellant was not free to leave. Therefore, our analysis of the legality of the police officers’ activities must be within the stricture of the Fourth Amendment.

However, while I disagree with the majority on the seizure issue, I agree with them that appellant voluntarily relinquished the drugs on her person. Under the Fourth Amendment, the consensual relinquishment of the drugs by appellant must be viewed within the context of the detention. Here it is unquestionable that under the totality of the circumstances the detention of appellant was legal; and therefore, I would find no violation of appellant’s Fourth Amendment rights when she retrieved the drugs from her own person where the alternative was for the police to secure a warrant.

. However, I must in candor agree with this court’s statement in Commonwealth v. Daniels, 410 Pa.Super. 275, 279 n. 1, 599 A.2d 988, 990 n. 1 (1992), appeal denied, 531 Pa. 645, 612 A.2d 983 (1992), cert. denied sub nom., Pa. v. Daniels, - U.S. -, 113 S.Ct. 1361, 122 L.Ed.2d 740 (1993), at footnote one which calls into question the validity of the profile:

The drug courier profile is not a ‘national profile.' Profiles vary from city to city, airport to airport and also depending on which law enforcement agency is using them. The profile is subject to racial abuse and gender stereotyping, where the fact that a person is an African-American, Columbian, or Hispanic has appeared as a profile characteristic, as has the fact that the person was the only woman on an airplane carrying business travelers. Commonwealth v. Lidge, 399 Pa.Super. 360, 582 A.2d 383 (1990). A breakdown of profile traits listed in the reported decisions reveals that it encompasses such contradictory characteristics as deplaning first and deplaning last, paying with small bills and paying with large bills. It also encompasses an extraordinary amount of innocent behavior such that the average airline traveler would be hard-pressed to not display at sometime during a trip. Furthermore, it is not clear whether the display of one or two characteristics is sufficient to fit the profile or whether if some characteristics carry greater weight than other characteristics such that the display of one of these weightier characteristics may trigger an airport stop. Note, the Drug Courier Profile *407and Airport Stops; Reasonable Intrusions or Suspicionless Seizures. 12 Nova.L.Rev. 273, 288-289.

Id.

. I am constrained to recognize the initial questioning by the police as a mere encounter, based on the recent rulings of this court and the United States Supreme Court. However, I find more persuasive the analysis presented by Judge Popovich in dissent in Jermaine. The dissent reasoned:

I am convinced that under the foregoing facts, a reasonable person would believe she was not free to leave. To hold otherwise would be to perpetuate the myth that a reasonable person, when confronted by police officers, actually believes she has the option of declining to listen to the officers and leaving without suffering further consequences. Although constrained to follow the judgment of the Supreme Court regarding what a reasonable person believes when confronted by a law enforcement officer, numerous Circuits of the United States Court of Appeal have recognized the artificiality of the Supreme Court’s test. See United States v. Thame, 846 F.2d 200, 202 (3rd Cir.1988), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 333 (1988) ('Although we have our doubts whether a reasonable person who is greeted by federal agents and asked for identification feels free to simply ignore the agents____’); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984) (‘Maybe this is a wrong guess about what the average person feels in this situation____’); United States v. Cordell, 723 F.2d 1283, 1286 (7th Cir.1983), cert. denied, 465 U.S. 1029, 104 S.Ct. 1291, 79 L.Ed.2d 693 (1984) (Swygert, J. concurring) (I believe that as a factual psychological matter people who are stopped for questioning of this kind by police officers ... generally do not feel "free to leave”____'); see also Note, The Drug Courier Profile and Airport Stops: Reasonable Intrusions of Suspicionless Seizures?, 12 Nova L.Rev. 273, 284 (1987) (lower courts recognize ‘the artificiality of the test’)____

Jermaine, 399 Pa.Super. at 517-518, 582 A.2d at 1065.

Further, I believe it strains the imagination to say that a police request to search one’s bags, purse or person can be a part of an inoffensive and unintrusive "mere” encounter. To carry forward such logic would be to convert a weapons pat down, otherwise defined by Fourth Amendment case law as a Terry stop, into a mere encounter so long as the police are polite about it and gentle in where they place their hands. Rather, I believe the focus must center on the nature of *408the request being made by the police and not on the alleged consent. The validity of any consent to search must be determined within the context of the right of the police to make the request in the first instance. Compare Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990), aff'd sub nom., Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992) (otherwise valid actual consent to a blood test rendered invalid because police lacked probable cause to make the request).