Commonwealth v. Rodriquez

PAPADAKOS, Justice,

dissenting.

I dissent for two reasons. First, the officers had reasonable suspicion to detain Appellant and, therefore, to search her purse. Second, I am not convinced that the majority has satisfied Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), in accounting for new federal case law on arrests.

As to the first reason, the informant told the police that a Puerto Rican female was involved in the illegal enterprise. Appellant, a Puerto Rican female, was discovered in the dwelling (presuming the outside stoop qualifies at least as curtilage). The police asked her if she lived there and she answered affirmatively. The police knew that drugs had been thrown from a window of the house.

The majority urges us to view police conduct as a dragnet search and seizure, which it definitely is not. Given the totality of circumstances, I believe firmly that the police surely had reasonable suspicion to detain the Appellant. Appellant satisfied the time and place requirements of the crime; addi*76tionally, she matched the physical description of a Puerto Rican female given by the informant.1

While Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), did not specify the quantum of evidence required for the reasonable suspicion standard, it is obvious that means less than “absolutely certain.” Subsequent interpretations have held the standard to be “obviously less demanding than for probable cause,” United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); considerably less proof of wrongdoing that is based on “some minimal level of objective justification,” United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), rehearing denied, 455 U.S. 1008, 102 S.Ct. 1648, 71 L.Ed.2d 877 (1982). Terry demands that the officer must be able to point to “specific and articulable facts” to justify the intrusion. Given what the police knew about the time, place and characteristics of the actors, the detention of Appellant was justified.

I am prepared to concede that the analysis becomes more complex because the case involves a multi-family dwelling and the police at the outset could not connect the Appellant with the specific apartment where criminal conduct took place. The majority opinion, however, advances no analysis of this problem but merely asserts in a conclusory fashion that the facts are self-executing in favor of the Appellant. That will not do at all.

The police, in effect, were chasing down subjects whom they reasonably believed may have been involved. This is no different from a police chase of targeted suspects who are fleeing any crime. As long as the quantum of evidence meets Terry, the subsequent search is acceptable. The presence of guns, moreover, was necessitated by the circumstances: are *77we saying that in this time in history the police cannot carry out drug busts with weapons brandished for fear of having evidence suppressed because of lack of probable cause for arrest when suspects at the scene are being investigated?

Nor will it do any longer to continue to ignore Edmunds. Here the majority cites Edmunds merely to restate the obvious point that a state can give a defendant more protection than afforded by federal cases. Edmunds, however, mandates much more, as I am growing weary of reminding this Court.

As such, we find it important to set forth certain factors to be briefed and analyzed by litigants in each case hereafter implicating a provision of the Pennsylvania constitution. The decision of the United States Supreme Court in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), now requires us to make a “plain statement” of the adequate and independent state grounds upon which we rely, in order to avoid any doubt that we have rested our decision squarely upon Pennsylvania jurisprudence. Accordingly, as a general rule it is important that litigants brief and analyze at least the following four factors:
1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania case-law;
3) related case-law from other states;
4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.
Depending upon the particular issue presented, an examination of related federal precedent may be useful as part of the state constitutional analysis, not as binding authority, but as one form of guidance.

526 Pa. at 390, 391, 586 A.2d at 895.

As applied to the present case, Edmunds requires us to consider other state and federal cases regarding the meaning of arrest under Article I, section 8 of our Constitution. The inquiry is necessary because the majority concluded that “clearly, the seizure of appellant under the facts before this Court constituted an arrest.” (Opinion, p. 74).

*78The traditional meaning of an arrest as cited correctly by the majority is Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), but which has been challenged dramatically by California v. Hodari D., — U.S.-, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Hodari D. rejected the view that an arrest occurs when the defendant has a reasonable belief that she was not free to leave. Hodari D. also addresses the issue of whether police can seize material dropped during a confrontation. In addition to binding federal courts, I point out to the majority that Hodari D. has been accepted by our own Superior Court. Commonwealth v. Daniel Harper, 416 Pa.Super. 608, 611 A.2d 1211 (1992), and Commonwealth v. Gregory Peterfield, 415 Pa.Super. 330, 609 A.2d 540 (1992).

Over 100 state courts so far have construed Hodari D. Thirty of these are courts of final review. An abbreviated listing of reported cases will suffice to illustrate the point. Connecticut v. Cofield, 220 Conn. 38, 595 A.2d 1349 (1991); Robertson v. Delaware, 596 A.2d 1345 (Del.Supr.1991); Florida v. Greg Anderson, 591 So.2d 611 (Fla.1992); Idaho v. Rawlings, 121 Idaho 930, 829 P.2d 520 (1992); Commonwealth v. Laureano, 411 Mass. 708, 584 N.E.2d 1132 (1992); Michigan v. Hawkins, 437 Mich. 1034, 471 N.W.2d 556 (1991); Oregon v. Gerrish, 311 Or. , 506, 815 P.2d 1244 (1991).

The majority’s failure to examine contemporary developments in the laws of arrest run counter to the demands of Edmunds. Regardless of the eventual outcome of such an analysis on the instant case, the present gaping omission must lead to dissent from the majority for failure to sustain its legal conclusions which, in turn, result from discarding recent precedent which dictates the form of analysis to be followed in cases based on Article I, section 8.

. The majority’s strictures regarding identification of suspects by race are well taken in general, but only up to a point. First, there is no evidence of racial motivation by the police, and faint implications of such in our opinions should be avoided except on proof. Second, identification by race can be identification merely for purposes of investigation: "the assailant was a white male," or "the robber was a black female,” or "a Puerto Rican female is part of the gang" — all of which designations aid the police in finding the criminal, and nothing more.