Commonwealth v. Yashinski

ORIE MELVIN, J.,

dissenting:

The majority holds that the Pennsylvania State Police illegally stopped appellant’s vehicle by using a turnpike toll plaza as a roadblock. It concludes the trooper stopped the vehicle by virtue of the fact he greeted appellant and asked him where he was coming from. Because I believe the trial court was correct in its assessment of this encounter as a “mere casual conversation between a police officer and a motorist” I dissent.

The record reveals that Trooper Gibson was located at the toll plaza as part of standard police procedure that requires an officer to go through each interchange within his jurisdiction at least once during a shift. While at the toll plaza and as appellant was already stopped to take a ticket, Trooper Gibson asked him either how he was doing or where he was coming from. Trooper Gibson testified that he greeted almost all drivers in this manner. Trooper Gibson was not stopping vehicles for inspection or asking the occupants for their driver’s license or registration. He was merely greeting them and engaging in casual conversation.

*1044The majority finds Trooper Gibson engaged in a practice of systematic stopping and investigation of drivers coming through the tollbooths. Although the trial court found that appellant was not stopped by Trooper Gibson, the majority finds this fact immaterial. However, under the majority definition of a roadblock Trooper Gibson must have been engaged in a routine stopping of vehicles. Appellant’s pause at the tollgate was caused merely by the fact he had to obtain a ticket. At that point a casual question was asked. Appellant could have continued without further contact or any response. Instead, Appellant chose not only to respond to Trooper Gibson’s question but asked him for directions for his destination. Trooper Gibson simply did not stop appellant’s vehicle.

The majority’s holding is premised on the belief that questioning by a police officer, even such non-threatening questions like “how is it going,” constitutes a stop because most lay people do not feel free to ignore an officer’s questions. However, such a conclusion is based on mere speculation. Citizens may voluntarily cooperate with police out of a natural sense of obligation, civic duty, or simple common courtesy. Commonwealth v. Hoak, 700 A.2d 1263, 1268, n. 6 (Pa.Super.1997). See also Schneckloth v. Bustamonte, 412 U.S. 218, 247, 93 S.Ct. 2041, 36 L.Ed.2d 854(1973) (stating “[tjhere is no reason to believe ... that the response to a policeman’s question is presumptively coerced”). Furthermore, the majority’s holding flies in the face of legal precedent which holds that not all personal intercourse between police officers and citizens involve seizures of persons. Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, (1968) (indicating a police uniform, as a symbol of authority, is not in itself a sufficient exercise of force to conclude a stop occurs when a citizen is approached and questioned). To characterize a toll plaza as a defacto roadblock because appellant engaged in polite conversation with Trooper Gibson ignores this well-established legal principle. In conclusion because I believe Trooper Gibson’s presence at the tollbooth and his greeting of motorists did not transform the toll plaza into a roadblock, I would affirm appellant’s judgment of sentence.