Commonwealth v. Metz

KELLY, Judge,

concurring:

I concur in the result. I agree that the issue of the legality of the police stop was raised below, albeit in what may be considered “boilerplate” terms. Normally, this fact could suffice to establish waiver as it has been held repeatedly that boilerplate motions do not preserve issues for appeal. See e.g. Commonwealth v. Hawthorne, 364 Pa.Super. 125, 527 A.2d 559 (1987); Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987); Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985); Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc).

*116In this case, however, I am compelled to agree with the majority that the issue has not been waived. The purpose of considering arguments to be waived on appeal is to provide the tribunal with initial jurisdiction the first opportunity to address the issue. See e.g. DeMarco v. Jones & Laughlin Steel Corp., 513 Pa. 526, 532 n. 4, 522 A.2d 26, 29 n. 4 (1987); Commonwealth v. Milliner, 442 Pa. 537, 542, 276 A.2d 520, 523 (1971). I discern from several recent cases that where no such purpose is served, waiver analysis should not be applied. See Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (Table) (1988) (slip opinion at 1); Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805 (1991); Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988).

Here, no purpose would be served by considering appellant’s claim waived. However vague the terms in which appellant phrased the issue of the legality of the police stop of his vehicle below, the trial court apparently gleaned from the appellant’s argument the precise issue brought before this Court on appeal and addressed it in its opinion. The tribunal with initial jurisdiction was therefore not only provided with, but actually seized the first opportunity to address the issue. Under these circumstances, I believe we must consider the issue preserved for appeal. See Commonwealth v. Sheaff, supra; Commonwealth v. Sopota, supra; Commonwealth v. Hewett, supra.1

With regard to the merits of appellant’s claim that the police lacked reasonable suspicion to stop him after he avoided the roadblock, I must part company with the majority. In its opinion, the majority concludes that something other than an attempt to avoid a police roadblock is required *117to serve as a basis for an officer’s reasonable suspicion that criminal activity is afoot. I cannot agree.

When a police officer requests that a motorist stop his or her vehicle, such as at a roadblock, the motorist must comply. See 75 Pa.C.S.A. § 6308. Indeed, safety, if not common sense, dictates this result. It would be absurd to conclude that a motorist could merely drive straight past a team of police cruisers and officers stationed at the side of a roadway, contumaciously ignoring their orders to stop, and flouting the obvious dangers involved. Moreover, the purpose of the roadblock would be hallow indeed if it allowed motorists to proceed or be detained at their own discretion.

In my opinion, there exist insufficient reasons for distinguishing, for the purposes of determining reasonable suspicion, between various means by which a motorist may fail to comply with a roadblock. However accomplished, the motorist’s goal remains the same: to prevent the constitutionally authorized detention. It is true, of course, that wholly innocuous reasons, such as those based upon delay or medical emergencies, may motivate motorists to avoid a roadblock. Such reasons, however, may also prompt motorists to navigate their cars through the roadblock without stopping. We would not prevent the police from briefly detaining (and perhaps even arresting) motorists for driving through the middle of a checkpoint because of the possibility of such benign motives, and I would not allow such a possibility from preventing the police from detaining a motorist for intentionally avoiding one either. So long as the roadblock is in the motorist’s sight, then it matters not, in my view, the method of noncompliance; any raises a level of reasonable suspicion.

By holding to the contrary, the majority implicitly concludes that a motorist may exercise his or her discretion in such a way as to comply or not with a roadblock. If this is so, then the very intent of the systematic detentions will be effectively thwarted if not totally eviscerated by its ruling. No such ruling or result has been previously contemplated. *118Had either the Pennsylvania or the United States Supreme Court assumed that such motorist discretion would be available at roadblocks, then they need not have considered, as they did, the constitutional implications of such systematic checkpoints. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987). Rather, if the discretion to simply avoid the intrusion altogether had been assumed, then the checkpoint itself would not have been considered a constitutionally recognizable seizure in the first place. See Florida v. Bostick, 501 U.S.-, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (where an individual is free to decline an officer’s request to inspect the individual or his or her property, the mere request constitutes no constitutionally recognizable search or seizure). Thus, for the respective Supreme Courts to have reached the question of the constitutionality of roadblocks wherein individuals are stopped without any particularized suspicion, each Court must have presumed, as do I now, that the roadblock is a mandatory demand to which a motorist must comply, and that the failure to so comply would not be tolerated either by the officers involved or by the courts upon review.

Because I believe that compliance with a roadblock within the motorist’s sight is legally obligatory, I would hold that avoidance of such a roadblock provides a basis for the police to presumptively infer that the motorist who does so is conscious of his or her guilt and is seeking to avoid its detection. The presumption could, of course, be rebutted by facts which might otherwise dispel such suspicion, e.g. evidence of a medical emergency, etc. Where no evidence to rebut the presumption exists, however, I would find the officer maintains a reasonable suspicion that criminal activity is afoot and that an investigatory stop made thereafter is constitutionally permissible.

I note that I find nothing about such a presumption in any way inconsistent with either Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or its progeny which concludes that pedestrian’s flight alone does not constitute *119reasonable suspicion. See Commonwealth v. Jeffries, 454 Pa. 320, 325, 311 A.2d 914, 917 (1973); Commonwealth v. Martinez, 403 Pa.Super. 125, 128, 588 A.2d 513, 514 (1991). No court of which I am aware, certainly none cited by any sub judice, has authorized police to conduct systematic obligatory “sidewalk blocks.” The pedestrian, therefore, has no obligation to comply with any detention upon merely being viewed by police. See Florida v. Bostick, supra. The free citizen in a free country such as ours of course retains the discretion to run, walk, crawl or stop at that moment or any other under such circumstances, and accordingly, neither the police nor the courts can draw any adverse inferences from the exercise of any such discretion.

Motorists, however, are granted privileges by the state to operate their vehicles on highways that are highly regulated and of potentially great danger. See Commonwealth v. Tarbert, supra. Unlike pedestrains, therefore, they must submit to systematic detentions based on no particularized suspicion. Id. When one who is subject to such detention is observed intentionally avoiding it, we are left with facts, not available to the officer who merely witnesses a pedestrian flee, from which we may infer a consciousness of guilt and a fear of its detection. To find decisions regarding pedestrians on a sidewalk controlling in roadblock avoidance cases is essentially to discount the fact that the motorist, unlike the pedestrian, has chosen to avoid an obligatory detention. In my opinion, no reasonable police officer with roadblock experience would similarly discount such a fact. This Court should not either. See United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981) (Evidence must be seen and weighed “as understood by those versed in law enforcement.”); see also United States v. Ceballos, 719 F.Supp. 119, 124 (E.D.N.Y.1989) (“A virtuoso may draw reasonable inferences and suspicion of criminal involvement that would elude an amateur.”).

It is important to remember that at issue is the justification for only a brief and investigatory stop. The quantum of suspicion, therefore, need not rise to a level of certainty, *120a preponderance of evidence, or even a fair probability. The suspect’s expectation of privacy is not sufficiently infringed by such governmental intrusion as to require any more than a reasonable suspicion which is a level “obviously less demanding than for probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 308 (1990) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989)).

I would hold that the evidence of intentional avoidance herein, i.e. throwing the car in reverse upon realizing that the roadblock was approaching, gave the police more than the level of suspicion necessary. No evidence served to rebut the presumption that appellant’s intentional avoidance was due to his consciousness of guilt and fear of its detection. Thus, I agree that the stop was justified. Because the majority reaches this result by other means, I concur.

. Moreover, in view of the probability of such an appeal returning to this and other court’s through collateral challenges, it ill serves the doctrine of judicial economy to find waiver in such cases as that herein. See Commonwealth v. Bennett, 512 Pa. 525, 530 n. 5, 517 A.2d 1248, 1250 n. 5 (1986) (“As day follows might ... appellee will stand before us ... alleging ineffective assistance of trial and appellate counsel.”).