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568 Pa. 329, 796 A.2d 967
Supreme Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee,
v.
Alma MACK, Appellant.
Argued Oct. 16, 2001.
Decided May 20, 2002.
Defendant was convicted in the Court of Common Pleas, Criminal Division, Philadelphia County, Criminal Division, No. 9404-3272-3273,
Gregory E. Smith, J., of possession of a controlled substance. Defendant appealed. The Superior Court, No. 2699 PHL 1997,
affirmed. Defendant petitioned for allocatur. On grant of petition, the Supreme Court, No. 54 EAP 2000, Newman, J., held that
defendant's consent to search suitcase was voluntary.
Affirmed.
Saylor, J., concurred and filed opinion.
Nigro, J.
dissented and filed opinion in which Zappala, C.J., joined.
**968 *330 Glen H. Ridenour, Philadelphia, for appellant, Alma Mack.
Catherine Lynn Marshall, Hugh J. Burns, Jr., Philadelphia, for appellee, Com. of PA.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Justice NEWMAN.
We granted this appeal to
decide the validity of a consent to search when the police inform the suspect that they would obtain a search warrant if the
suspect refuses permission to search. We affirm the decisions of the Court of Common *331 Pleas of Philadelphia County (trial court) and the Superior Court upholding the validity of the consent to search.
On January
26, 1994, at approximately 7:00 p.m., Sergeant Kilrain of the Philadelphia Police Department received a telephone call from
a woman who identified herself as Officer Susan Hughes of the Houston (Texas) Police Department. Officer Hughes informed Sergeant
Kilrain that the department's narcotic-detector dog, while conducting a sniff search of baggage at the Houston airport, indicated
the presence of drugs in a piece of luggage that had been placed on a flight bound for Philadelphia, Pennsylvania. Sergeant Kilrain received a two-page fax from the Houston Police
Department that described the luggage, the number and airline of the flight, and the baggage claim number of the suspect item.
Specifically, the fax stated that the luggage was a brown bag with a green stripe, and a claim ticket bearing the number 22-11-07.
Also, the fax stated that the luggage was on Northwest Airlines Flight 1086 scheduled to arrive in Philadelphia at 11:04 p.m.,
and that the passenger who was seen with the bag was an African American female. The fax further explained the background
and training of Officer Hughes and the narcotic-detector dog.
Sergeant Kilrain, along with Officers McEwen, Jones, Perrone
and Levins, all of whom were dressed in plainclothes, proceeded to the Philadelphia International Airport to investigate the
tip. The officers confirmed that there was a Northwest Flight 1086 due to arrive at 11:04 p.m. from Houston, Texas, and waited
in the **969 baggage claim area for the flight to arrive. The flight arrived on time and, at approximately 11:10 p.m., Officer Levins observed
a brown bag with a green stripe on the carousel and saw an African American female, later identified as Appellant, pick up
the bag. There were no other bags on the carousel that matched the description given by Officer Hughes.
Officer Levins
followed Appellant as she walked toward the exit door and noticed that Appellant had a claim ticket in her hand. He then approached Appellant, identified himself as a police officer,
and asked if he could examine her claim ticket. *332 Appellant, who had her arm extended with her claim ticket in hand for inspection by airport personnel, did not retract her
arm. Officer Levins then took the claim ticket, examined it, and noticed that it bore the claim number of 22-11-07. After
verifying that the claim ticket number matched the number on the bag in Appellant's possession, Officer Levins asked Appellant
to accompany him to an airport office that was approximately thirty feet from the baggage area.
Once inside the office,
Sergeant Kilrain explained to Appellant that they had stopped her on suspicion that she was transporting drugs, and he gave
her Miranda [FN1] warnings. Another officer and two airline employees were present in the room with Appellant, Officer Levins and Sergeant
Kilrain. Sergeant Kilrain then asked Appellant for permission to search the bag. Although Sergeant Kilrain advised Appellant
that she could refuse, he also informed her that if she refused to consent to a search of the bag, the officers would detain
her in order to obtain a search warrant. [FN2] After reading a Consent *333 to Search Form, and saying nothing for approximately ten minutes, Appellant permitted the search of her bag and signed the
consent to search. Subsequent to searching the bag, the officers discovered three bricks of marijuana weighing a total of
twenty-five pounds.
FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
FN2. According to the testimony of Officer Levins, the exchange between the police officers and Appellant was as follows:
Like I said, [Sergeant Kilrain] told her that we believed she had narcotics in her suitcase. He then explained
to her that, you know, we wanted to search her bag and it was totally up to her. She would have us get a search warrant for
her bag or could sign a Consent to Search Form there, at which time we would open the bag at that point.
Q: Now what, if anything, was her response at that time?
A: At first, she was--it was quiet. She was very nervous. She thought about it for several minutes, and she decided,
after about ten minutes, she would sign the Consent to Search Form and she did.
Notes of hearing, 5/4/95, p. 15. During cross-examination, Officer Levins further described the encounter with
Appellant:
Q: You told her, look, either sign the form or we'll get a search warrant and you told her how long it would take
to get a search warrant, is that correct?
A: We were very nice and polite to [Appellant] and explained everything to
her and let her read the form and think about it and that's when she decided to sign.
Q: In thinking about it ... you advised her if she didn't sign it, you will just get a search warrant anyway,
but it might take some time, am I correct?
A: We would have to get a search warrant, yes.
Id. pp. 30-31.
Appellant moved to suppress the contents of the bag, claiming that her
apparent consent to the search was invalid. The trial court denied Appellant's motion. Appellant waived her right to a jury
trial and on March 7, 1996, the trial court found her guilty of possession of a controlled substance. On April 16, 1996, the
court sentenced Appellant to six to twelve months **970 of incarceration. On appeal, the Superior Court affirmed in a 2-1 decision, finding that Appellant's consent to the search
of her bag was valid.
[1]  The scope and standard of our review for the ruling of a suppression court are well settled. Where the record supports the
factual findings of the court below, we may reverse the suppression ruling only if the legal conclusions drawn from those
facts are in error. Commonwealth v. Cleckley, 558 Pa. 517, 738 A.2d 427, 429 (1999); Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111(Pa.), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).
[2] [3] At issue presently [FN3] is whether Appellant validly consented to the search of her baggage when, prior to giving *334 her consent, the police advised Appellant that they would apply for a warrant if she denied them permission to search. As
we stated in Cleckley, "[t]his court, as well as the United States Supreme Court, has long adhered to the principle that for purposes of the Fourth
Amendment, consent must have been given voluntarily." Cleckley, 738 A.2d at 429. We further held in Cleckley that Article I, Section 8 of the Pennsylvania Constitution does not require that the Commonwealth establish a knowing and intelligent waiver of the right to refuse consent in order
for the consent to be valid. The test for the validity of a consent to search is the same for both the Fourth Amendment and
Article I, Section 8, i.e., that the consent is given voluntarily. Id. at 433. Accordingly, the Commonwealth must prove " that a consent is the product of an essentially free and unconstrained choice--
not the result of duress or coercion, express or implied, or a will overborne-- under the totality of the circumstances."
Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 901 (2000).
FN3. In granting Appellant's Petition for Allowance of Appeal, we
specifically limited our review to the question, "[d]id the Superior Court err in affirming the trial court's
denial of [Appellant]'s motion to suppress evidence seized as a result of the search of her luggage, based on the court's
determination that [Appellant] validly consented to the search of her luggage when, after confining her in the airport security
office, the police told her that she could consent to an immediate search or they would get a warrant?" Commonwealth v. Mack, 564 Pa. 2, 764 A.2d 1 (2000).
In her appeal to the Superior Court, Appellant claimed that Officer Levins illegally "seized" her claim ticket
and that the police illegally detained her when they escorted her to the airport office. The Superior Court rejected Appellant's
claim that Officer Levins illegally searched her claim ticket and held that the police had probable cause to detain her. Due
to the limited nature of our grant of allocatur, we must accept the conclusions of the Superior Court that Officer Levins
did not illegally obtain Appellant's claim ticket number and that the police had probable cause to detain Appellant. See
School District of Scranton v. Dale and Dale Design and Development, Inc.,
559 Pa. 398, 741 A.2d 186, 189 n. 2 (1999) (lower court's determination final as to issues not included in allocatur grant). Consequently, we limit our decision today
to reviewing the validity of Appellant's consent to search on the assumption that
Appellant was subject to a lawful custodial detention (i.e., one supported by probable cause) at the time the
police requested her consent to search.
Appellant contends that when the police present a suspect with
the choice of consenting to a search or waiting under detention while the police apply for a warrant, the consent of the suspect
is involuntary. In support of this argument, Appellant relies on Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Bumper, the police approached the owner of a home where the suspect lived and informed her that they had a search warrant. After
being told by the authorities that they had a warrant, the homeowner allowed them into the house, **971 where the police discovered a rifle believed to be an instrument of crime. When the defendant moved to suppress the rifle,
the prosecutor declined *335 to rely on the search warrant [FN4] and instead argued that the homeowner had consented to the search. The lower courts denied the suppression motion. The United
States Supreme Court granted certiorari and reversed, holding that "[w]hen a law enforcement officer claims authority
to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation
is instinct with coercion--albeit colorably lawful coercion. Where there is coercion there cannot be consent." Bumper, 391 U.S. at 550, 88 S.Ct. 1788.
FN4. The record was not clear as to why the prosecution could not rely on the search warrant at the suppression hearing. Bumper, 391 U.S. at 550 n. 15, 88 S.Ct. 1788.
We believe that Bumper is distinguishable from the instant case. In Bumper, the police represented that they were already in possession of a warrant and, consequently, the homeowner had no choice but
to permit the officers to enter her home. Here, by contrast, the officers did not represent that they had a search warrant,
such that Appellant's consent would be no more than acquiescence to lawful authority. Rather, the officers specifically informed
Appellant that they did not possess a warrant and that she was free to decline permission to search her bag.
When they simultaneously told her that if she refused to consent they "would have to get a search warrant," the officers simply
advised her, truthfully, of the consequences of denying permission. We do not find Appellant's decision to allow the police
to search her bag to be comparable to the situation of the homeowner in Bumper who, once told that the officers who wished to enter her house had a warrant, could not refuse.
We further reject the
argument of Appellant that a consent to search in the context of a lawful custodial detention is per se involuntary
when the police advise the suspect that they "would have to get a search warrant" if the suspect refuses to permit the search. Such a per
se rule would make it impossible for the police to ask for consent to search whenever they have probable cause to detain
the suspect and accurately advise the suspect of the consequences of refusing permission. *336 The statement by the police that they "would have to get a search warrant" is merely a factor, but not a dispositive one,
in the totality of the circumstances that a court must review in determining whether the police coerced the individual into
consenting to the search. [FN5]
FN5. Appellant alternatively advocates that we adopt a rule invalidating consent whenever the police inform a suspect that they
"will" obtain a warrant, or where the police lack probable cause when they tell the suspect that they would apply for a warrant.
The former situation, according to Appellant, is no different than the submission to lawful authority that the Court found
vitiated any basis for consent in Bumper; the latter scenario is inherently coercive because the choice presented to the suspect is based on a false premise when the
police lack the probable cause necessary to obtain a warrant.
We decline to adopt any of the bright-line approaches suggested by Appellant and leave to trial courts the determination
of whether particular
police conduct, in the circumstances of each case, is coercive.
Accordingly, we examine the
situation of Appellant to determine whether, under the totality of the circumstances, her consent to the search of her suitcase
was voluntary. Unquestionably, the police did more than we have previously required of them when they specifically advised
Appellant that she had the right to refuse them **972 permission to search. See Strickler, 757 A.2d at 901 ("while knowledge of the right to refuse consent to search is a factor to be taken into account, the Commonwealth is not
required to demonstrate such knowledge as a prerequisite to establishing voluntary consent"). Although the police informed
Appellant that they "would have to get a warrant" if she refused her consent, this accurate statement informed Appellant of
the true nature of her predicament, i.e., that she was not free to leave even if she denied the police permission to search.
As such, it is not a coercive tactic by the police. Appellant waited ten minutes prior to signing the consent form, which
indicates that her consent was the product of a considered deliberation. Furthermore, the police officers were polite and
allowed Appellant time to decide without pressuring her with additional urging while she made her decision. These factors
support the conclusion of the suppression court that Appellant voluntarily consented to the search of her bag.
We affirm the Judgment of the Superior Court.
*337 Former Chief Justice FLAHERTY did not participate in the decision.
Justice SAYLOR files a Concurring Opinion.
Justice NIGRO files a Dissenting
Opinion, in which Chief Justice ZAPPALA joins.
Justice SAYLOR, concurring.
I agree with the lead opinion's analysis distinguishing Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), rejecting a per se rule invalidating consents to search obtained during custodial interrogations, and applying a
totality-of-the-circumstances approach in assessing the voluntariness of Appellant's consent to search in the present case.
With regard to the totality assessment, however, although certainly the lead opinion aptly summarizes the range of non-coercive
factors, I write because I believe that the coercive factors involved should be afforded substantial weight in these paradigms.
While
an arrest does not per se render consent involuntary, see United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976), it nevertheless militates against a finding of consent, making the Commonwealth's burden more difficult. See Commonwealth v. Smith, 470 Pa. 220, 228, 368 A.2d 272, 277 (1977) (explaining that "custody, while not determinative in itself, places a heavy burden in showing that consent was voluntarily
given" and noting that "custody when coupled with other coercive factors, will normally necessitate the conclusion that the
consent is not effective"). In this regard, numerous factors have been identified as bearing upon the voluntariness of consent, [FN1] and where an individual is in custody at the time he purportedly consents to a search, the environment attending the detention
should also be considered *338 as integral to the totality assessment. See generally United States v. Smith, 260 F.3d 922, 924 (8th Cir.2001); 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT, § 8.2(b), at 646-47 (3d ed.1996) [hereinafter
"LAFAVE, SEARCH AND SEIZURE"]. The environmental considerations **973 include, inter alia, whether the arrest was made with a display of weaponry or required the use of force against the
defendant; whether the defendant was physically restrained; the time and length of the detention; the location of the detention;
and whether the custody was used as leverage in obtaining consent. See id. Additionally, a coercive dynamic has been
discerned from the airport setting, see, e.g., United States v. Worley, 193 F.3d 380, 387 (6th Cir.1999) (quoting United States v. Berry, 670 F.2d 583, 596 (5th Cir.1982) (en banc)), albeit of a lesser degree than involved in stationhouse interrogation.
FN1. These circumstances include, among others, the existence of custody, duress, or coercive tactics by police; the defendant's
education, sophistication, intelligence, and knowledge of his right to refuse consent; whether the defendant believed that
no incriminating evidence would be discovered; and the extent and level of the defendant's cooperation with police. See
Commonwealth v. Cleckley, 558 Pa. 517, 527 n. 7, 738 A.2d 427, 433 n. 7
(1999).
As with the circumstance of custody, a statement by police that they will obtain a search warrant if
the defendant refuses to consent does not per se render the consent involuntary. See generally LAFAVE, SEARCH
AND SEIZURE § 8.2(c), at 651 n. 77 (collecting cases); Note, Consent to Search in Response to Police Threats to Seek or
to Obtain a Search Warrant: Some Alternatives, 71 J. CRIM. L. & CRIMINOLOGY 163, 165 n. 21 (1980) (same). The officer's
statement should nevertheless be treated as a significant factor within the totality assessment, see generally Stephenson v. State, 494 S.W.2d 900, 904-05 (Tex.Crim.App.1973) (describing a police assertion that they would obtain a warrant as an important factor in the totality assessment), the weight
of which may vary depending upon the language used by the officer. For instance, advising an individual that the police will
seek or apply for a search warrant should be distinguished from a statement indicating that the officer will obtain a warrant.
See United States v. Boukater, 409 F.2d 537, 538 (5th Cir.1969); State v. Harmon, 910 P.2d 1196, 1207 (Utah 1996). [FN2] In the latter circumstance, *339 the officer may be overstating his authority by suggesting that a search is inevitable and that the withholding of consent
will be futile. [FN3] Of additional consequence, the existence of probable cause to support the issuance of a search warrant impacts upon the assessment
of the statements made by the police. See generally LAFAVE, SEARCH AND SEIZURE § 8.2(c), at 653 nn. 83-84 (collecting
cases and explaining that "[t]his proposition rests upon the conclusion that the 'threat' in such circumstances does not involve
any deceit or trickery, but instead accurately informs the individual of his precise legal situation").
FN2. While undue weight should not attach to distinctions based upon differences in semantics, the nature of the communication
is a proper
consideration within the totality assessment. See United States v. Tompkins, 130 F.3d 117, 122 (5th Cir.1997).
FN3. In my view, such a statement more closely parallels the situation in Bumper.
Here, although the police indicated that they "would" obtain a search warrant if Appellant declined to
give her consent, I believe that probable cause existed to conduct a search based upon their corroboration of the information
provided by the Houston Police Department and, significantly, the alert by the canine to the suitcase claimed by Appellant.
See United States v. Williams, 69 F.3d 27, 28 (5th Cir.1995) (stating that "[a] drug-sniffing canine alert is sufficient, standing alone, to support probable cause to search"). [FN4] More important is the effect of Miranda warnings upon the voluntariness of consent, as the police advised Appellant of her constitutional **974 rights. Having been warned that anything she said could be used against her, Appellant's decision to sign the consent to search
form, permitting the officers to inspect her suitcase and discover the incriminating evidence, is indicative of an absence
of coercion. Cf. United States v. Jones, 475 F.2d 723, 730 (5th Cir.1973); Commonwealth v. Pytak, 278 Pa.Super. 476, 488, 420 A.2d 640, 646 (1980) (citing United States v. Menke, 468 F.2d 20 (3d Cir.1972), for the proposition that "the provision of *340 a Miranda warning alone, followed by a consent to search is not only persuasive but controlling on the question of voluntariness").
FN4. Other jurisdictions have been more circumspect, requiring the suppression court to consider the reliability of the canine
in the probable cause analysis. See State v. England, 19 S.W.3d 762, 768 (Tenn.2000). Notably, the Houston Police Department supplied information concerning the background, training, and experience of the canine
that was used in this case.
In summary, although affording substantial weight to the coercive dynamics
involved, in light of the entire circumstances presented, I am able to join the disposition directed by the lead opinion.
Justice NIGRO, dissenting.
I dissent. Appellant was detained by the police and given no more than what amounted to a Hobson's choice--give consent to an immediate search of her bag or refuse to give consent, and have the bag
searched anyway. Under these circumstances, where there was no true choice presented, I simply cannot agree with the majority's
conclusion that Appellant's consent was constitutionally valid.
Under both the Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution, warrantless searches and seizures are unreasonable, and therefore prohibited, except for
a few established exceptions, one of which is consent. Commonwealth v. Williams, 547 Pa. 577, 692 A.2d 1031, 1034-35 (1997). In order for the consent to be valid, the Commonwealth must prove that the consent was the product of an essentially free
and unconstrained choice, and not the result of duress or coercion, express or implied, or a will overborne. Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 901 (2000).
Here, at 7:00 p.m. the Houston Police Department notified the Philadelphia Police Department that a drug-sniffing dog
in Houston had detected drugs in a piece of luggage on Northwest Flight 1086, scheduled to arrive in Philadelphia at 11:04
p.m. Five Philadelphia police officers went to the Philadelphia airport and waited for the airplane. Four hours after the
Philadelphia police received the information from the Houston police, Appellant arrived in Philadelphia on Flight 1086 and claimed a bag matching the description given by the Houston police. Philadelphia Police Officer
Michael Levins confronted *341 Appellant as she attempted to leave the airport, identified himself as an officer, and asked to see her baggage claim ticket.
The officer took the claim ticket from her hand, picked up the bag, and asked her to accompany him to the airport security
office.
Although the police did not formally arrest Appellant at that point, the record clearly establishes that from the
time Appellant was escorted to the airport security office she was not free to leave. [FN1] (N.T., **975 5/4/95, at 35.) After confining her in the security office with three police officers and two airline employees, the police
informed Appellant that she was suspected of carrying drugs in her bag, provided her with Miranda warnings, [FN2] interrogated her, and presented her with a consent to search form. The police told her that she could decide whether to sign
the form, but that if she refused, they would simply get a warrant to search the bag. The police detained Appellant in the
security office for over ten minutes until she agreed to sign the form.
FN1. Pennsylvania case law recognizes three categories of interaction between police and citizens. See In the Interest of S.J., 551 Pa. 637,
713 A.2d 45, 47 n. 3 (1998). The first of these is a "mere encounter," or request for information, which need not be supported by any level of suspicion,
but carries no official compulsion to stop or to respond. Id. The second, an "investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and a
period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest.
Id. Finally, an arrest or "custodial detention" must be supported by probable cause. Id. Probable cause exists where the facts and circumstances within the officer's knowledge are sufficient to warrant a person
of reasonable caution in the belief that an offense has been or is being committed. Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203, 206 (1994).
FN2. See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).
If, as the Superior Court below concluded, the police had probable cause to arrest Appellant when they
first approached her, they would have been justified in subjecting her person and her bag to a full search incident to arrest.
See Commonwealth v. Shiflet, 543 Pa. 164, 670 A.2d 128, 130 (1995) (scope of search incident to arrest extends into the area within the arrestee's immediate control). The fact that the police did not
*342 arrest Appellant, however, can only lead to the conclusion that the officers did not believe they had probable cause prior
to searching Appellant's bag. [FN3] It seems clear that the police believed they needed to obtain the suspected drugs in Appellant's bag in order to possess
the probable cause necessary to arrest her. This presented an interesting dilemma for the police--they believed they needed
to search Appellant's bag to obtain probable cause to arrest her, but in order to search her bag, they needed either probable
cause for a warrant or consent to search. However, rather than following proper procedures to legally obtain access to Appellant's
bag, the police, in my view, circumvented the law by inducing Appellant's consent to search her bag. [FN4] The police did not have a warrant, had not applied for one, and in fact, based on their conduct, did not even believe they
possessed the probable cause necessary to secure one. Yet despite their apparent belief that they lacked probable cause, the
police nonetheless told Appellant that, absent her consent to the search, they *343 would go ahead **976 and get a warrant. [FN5] In doing so, the police conveyed the message that issuance of the warrant was inevitable and therefore, it was futile to
deny permission to search. These circumstances make it abundantly clear that in the end, the police simply did not present Appellant with the true nature of her options, which served to eliminate any real choice Appellant had regarding
her consent to the search and in turn, negated her constitutional right to refuse consent.
FN3. The police obviously suspected that Appellant's bag contained drugs. Based on the information received from the Houston police,
along with the other factors present, there was sufficient reasonable suspicion to justify an investigative detention of Appellant.
FN4. Although I am strongly in favor of the police having at their disposal the necessary law enforcement techniques and tools
to effectuate arrests and protect the public from the scourge of illegal drugs, there are constitutional and procedural rules
applicable to those techniques and tools which, if violated, render a search illegal. See, e.g., Pa.R.Crim.P. 200-211 (governing issuance and execution of search warrants); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 895-99 (1991) (tracing unique history of Pennsylvania's constitutional protection against unreasonable searches and seizures); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283, 1291 (1979) (right to be free from unreasonable searches under the Pennsylvania Constitution is tied to the implicit right
to privacy in this Commonwealth). I do not believe, however, that the guarantees against unreasonable searches
and seizures should be curtailed as a means of increasing efficiency in law enforcement. See Commonwealth v. Yastrop, 564 Pa. 338, 768 A.2d 318, 357-61 (2001) (Nigro, J., dissenting) (efficiency of DUI roadblocks does not override the cumulative privacy interests of all motorists).
See generally Steven Wisotsky, Crackdown: The Emerging "Drug Exception" to the Bill of Rights, 38 Hastings L.J. 889 (1987) (tracing the retreat from the historic constitutional mission of shielding citizens from governmental overreaching in the
name of doing whatever is deemed necessary or expedient in waging the war on drugs).
FN5. I believe it is significant that the police informed Appellant that if she did not consent to the search they would get a
warrant, rather than stating that the police would have to attempt to secure a warrant if she declined consent. (N.T., 5/4/95,
at 15, 29, 30-31.) The majority finds that the police advised Appellant that they would apply for a warrant if she
denied them permission to search. Maj. Op., at 970 (emphasis added). However, based on the testimony of record, the police
advised Appellant that she could sign the consent to search form or they would get
a warrant. (N.T., 5/4/95, at 15, 29, 30-31.)
Furthermore, unlike the majority, I believe that
Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), supports a conclusion that Appellant's consent was coerced. In Bumper, four police officers approached the owner of a home, the defendant's grandmother, and announced that they had a warrant to
search her house. Although the officers did not produce a warrant, the homeowner allowed them into her home, where the police
discovered a rifle believed to be an instrument of crime. The defendant moved to suppress the evidence seized, and the prosecution
relied upon the alleged consent of the homeowner to justify the search. [FN6] The United States Supreme Court concluded:
FN6. The majority states that the record is unclear as to why the prosecution in Bumper could not rely on the search warrant to justify the search. Maj. Op., at 6 n. 4. However, the prosecution, for unknown reasons,
chose not to rely upon the validity of the warrant. Bumper, 391 U.S. at 546, 549-50, 88 S.Ct. 1788. In fact, the Supreme Court explained that no warrant was ever returned, and there is no way of knowing the conditions under
which it was issued, or determining whether it was
based on probable cause. Id. at 550 n. 15, 88 S.Ct. 1788.
When a law enforcement officer claims authority to search a home under a warrant, he announces in effect
that the occupant has no right to resist the search. The situation is instinct with coercion--albeit colorably lawful coercion.
*344 Where there is coercion there cannot be consent. We hold that [the homeowner] did not consent to the search, and that it was
constitutional error to admit the rifle in evidence against the [defendant].
Id. at 550, 88 S.Ct. 1788 (citation omitted).
Like in Bumper, the police in the instant case claimed lawful authority to search Appellant's bag, thereby communicating to Appellant that
she had no right to resist the search. The only difference is that the police in this case claimed they merely had to go get
the warrant, at the expense of their time and trouble, whereas in Bumper the police claimed they already had the warrant in their possession. This is, however, simply a difference without distinction.
The police in the instant case detained Appellant and told her that if she refused to consent to a search, they would simply
go get a warrant. In my view, this is the type of coercive consent that Bumper forbids. Accordingly, I dissent.
Chief Justice ZAPPALA joins in this dissenting opinion.
Pa.,2002.
Com. v. Mack
568 Pa. 329, 796 A.2d 967
END OF
DOCUMENT568 Pa. 329, 796 A.2d 967
Supreme Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee,
v.
Alma MACK, Appellant.
Argued Oct. 16, 2001.
Decided May 20, 2002.
Defendant was convicted in the Court of Common Pleas, Criminal Division, Philadelphia County, Criminal Division, No. 9404-3272-3273,
Gregory E. Smith, J., of possession of a controlled substance. Defendant appealed. The Superior Court, No. 2699 PHL 1997,
affirmed. Defendant petitioned for allocatur. On grant of petition, the Supreme Court, No. 54 EAP 2000, Newman, J., held that
defendant's consent to search suitcase was voluntary.
Affirmed.
Saylor, J., concurred and filed opinion.
Nigro, J.
dissented and filed opinion in which Zappala, C.J., joined.
West Headnotes
[1] KeyCite Notes
 110 Criminal Law
110XXIV Review
110XXIV(O) Questions of Fact and Findings
110k1158 In General
110k1158(4) k. Reception of Evidence. Most Cited Cases
Where the record supports the factual findings of a trial court at a suppression hearing, an appellate court may reverse
the ruling only if the legal conclusions drawn from those facts are in error. U.S.C.A. Const.Amend. 4; C.G.S.A. Const. Art. 1, § 8.
[2] KeyCite Notes
349 Searches and Seizures
349V Waiver and Consent
349k179 Validity of Consent
349k183 k. Knowledge of Rights; Warnings and Advice. Most Cited Cases
Defendant validly consented to search of her suitcase for drugs, although police told her that, if she refused, she
would be detained while they obtained a search warrant, where police told defendant they did not have a warrant, dealt politely
with defendant, and defendant took 10 minutes to decide whether to consent. U.S.C.A. Const.Amend. 4; C.G.S.A. Const. Art. 1, § 8.
[3] KeyCite Notes
349 Searches and Seizures
349V Waiver and Consent
349k179 Validity of Consent
349k180 k. Voluntary Nature in General. Most Cited Cases
To establish a valid consent to search, the Commonwealth must prove that a consent is the product of an essentially
free and unconstrained choice, not the result of duress or coercion, express or implied, or a will overborne, under the totality
of the circumstances U.S.C.A. Const.Amend. 4; C.G.S.A. Const. Art. 1, § 8.
**968 *330 Glen H. Ridenour, Philadelphia, for appellant, Alma Mack.
Catherine Lynn Marshall, Hugh J. Burns, Jr., Philadelphia, for appellee, Com. of PA.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Justice NEWMAN.
We granted this appeal to
decide the validity of a consent to search when the police inform the suspect that they would obtain a search warrant if the
suspect refuses permission to search. We affirm the decisions of the Court of Common *331 Pleas of Philadelphia County (trial court) and the Superior Court upholding the validity of the consent to search.
On January
26, 1994, at approximately 7:00 p.m., Sergeant Kilrain of the Philadelphia Police Department received a telephone call from
a woman who identified herself as Officer Susan Hughes of the Houston (Texas) Police Department. Officer Hughes informed Sergeant
Kilrain that the department's narcotic-detector dog, while conducting a sniff search of baggage at the Houston airport, indicated
the presence of drugs in a piece of luggage that had been placed on a flight bound for Philadelphia, Pennsylvania. Sergeant Kilrain received a two-page fax from the Houston Police
Department that described the luggage, the number and airline of the flight, and the baggage claim number of the suspect item.
Specifically, the fax stated that the luggage was a brown bag with a green stripe, and a claim ticket bearing the number 22-11-07.
Also, the fax stated that the luggage was on Northwest Airlines Flight 1086 scheduled to arrive in Philadelphia at 11:04 p.m.,
and that the passenger who was seen with the bag was an African American female. The fax further explained the background
and training of Officer Hughes and the narcotic-detector dog.
Sergeant Kilrain, along with Officers McEwen, Jones, Perrone
and Levins, all of whom were dressed in plainclothes, proceeded to the Philadelphia International Airport to investigate the
tip. The officers confirmed that there was a Northwest Flight 1086 due to arrive at 11:04 p.m. from Houston, Texas, and waited
in the **969 baggage claim area for the flight to arrive. The flight arrived on time and, at approximately 11:10 p.m., Officer Levins observed
a brown bag with a green stripe on the carousel and saw an African American female, later identified as Appellant, pick up
the bag. There were no other bags on the carousel that matched the description given by Officer Hughes.
Officer Levins
followed Appellant as she walked toward the exit door and noticed that Appellant had a claim ticket in her hand. He then approached Appellant, identified himself as a police officer,
and asked if he could examine her claim ticket. *332 Appellant, who had her arm extended with her claim ticket in hand for inspection by airport personnel, did not retract her
arm. Officer Levins then took the claim ticket, examined it, and noticed that it bore the claim number of 22-11-07. After
verifying that the claim ticket number matched the number on the bag in Appellant's possession, Officer Levins asked Appellant
to accompany him to an airport office that was approximately thirty feet from the baggage area.
Once inside the office,
Sergeant Kilrain explained to Appellant that they had stopped her on suspicion that she was transporting drugs, and he gave
her Miranda [FN1] warnings. Another officer and two airline employees were present in the room with Appellant, Officer Levins and Sergeant
Kilrain. Sergeant Kilrain then asked Appellant for permission to search the bag. Although Sergeant Kilrain advised Appellant
that she could refuse, he also informed her that if she refused to consent to a search of the bag, the officers would detain
her in order to obtain a search warrant. [FN2] After reading a Consent *333 to Search Form, and saying nothing for approximately ten minutes, Appellant permitted the search of her bag and signed the
consent to search. Subsequent to searching the bag, the officers discovered three bricks of marijuana weighing a total of
twenty-five pounds.
FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
FN2. According to the testimony of Officer Levins, the exchange between the police officers and Appellant was as follows:
Like I said, [Sergeant Kilrain] told her that we believed she had narcotics in her suitcase. He then explained
to her that, you know, we wanted to search her bag and it was totally up to her. She would have us get a search warrant for
her bag or could sign a Consent to Search Form there, at which time we would open the bag at that point.
Q: Now what, if anything, was her response at that time?
A: At first, she was--it was quiet. She was very nervous. She thought about it for several minutes, and she decided,
after about ten minutes, she would sign the Consent to Search Form and she did.
Notes of hearing, 5/4/95, p. 15. During cross-examination, Officer Levins further described the encounter with
Appellant:
Q: You told her, look, either sign the form or we'll get a search warrant and you told her how long it would take
to get a search warrant, is that correct?
A: We were very nice and polite to [Appellant] and explained everything to
her and let her read the form and think about it and that's when she decided to sign.
Q: In thinking about it ... you advised her if she didn't sign it, you will just get a search warrant anyway,
but it might take some time, am I correct?
A: We would have to get a search warrant, yes.
Id. pp. 30-31.
Appellant moved to suppress the contents of the bag, claiming that her
apparent consent to the search was invalid. The trial court denied Appellant's motion. Appellant waived her right to a jury
trial and on March 7, 1996, the trial court found her guilty of possession of a controlled substance. On April 16, 1996, the
court sentenced Appellant to six to twelve months **970 of incarceration. On appeal, the Superior Court affirmed in a 2-1 decision, finding that Appellant's consent to the search
of her bag was valid.
[1] The scope and standard of our review for the ruling of a suppression court are well settled. Where the record supports the
factual findings of the court below, we may reverse the suppression ruling only if the legal conclusions drawn from those
facts are in error. Commonwealth v. Cleckley, 558 Pa. 517, 738 A.2d 427, 429 (1999); Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111(Pa.), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).
[2] [3] At issue presently [FN3] is whether Appellant validly consented to the search of her baggage when, prior to giving *334 her consent, the police advised Appellant that they would apply for a warrant if she denied them permission to search. As
we stated in Cleckley, "[t]his court, as well as the United States Supreme Court, has long adhered to the principle that for purposes of the Fourth
Amendment, consent must have been given voluntarily." Cleckley, 738 A.2d at 429. We further held in Cleckley that Article I, Section 8 of the Pennsylvania Constitution does not require that the Commonwealth establish a knowing and intelligent waiver of the right to refuse consent in order
for the consent to be valid. The test for the validity of a consent to search is the same for both the Fourth Amendment and
Article I, Section 8, i.e., that the consent is given voluntarily. Id. at 433. Accordingly, the Commonwealth must prove " that a consent is the product of an essentially free and unconstrained choice--
not the result of duress or coercion, express or implied, or a will overborne-- under the totality of the circumstances."
Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 901 (2000).
FN3. In granting Appellant's Petition for Allowance of Appeal, we
specifically limited our review to the question, "[d]id the Superior Court err in affirming the trial court's
denial of [Appellant]'s motion to suppress evidence seized as a result of the search of her luggage, based on the court's
determination that [Appellant] validly consented to the search of her luggage when, after confining her in the airport security
office, the police told her that she could consent to an immediate search or they would get a warrant?" Commonwealth v. Mack, 564 Pa. 2, 764 A.2d 1 (2000).
In her appeal to the Superior Court, Appellant claimed that Officer Levins illegally "seized" her claim ticket
and that the police illegally detained her when they escorted her to the airport office. The Superior Court rejected Appellant's
claim that Officer Levins illegally searched her claim ticket and held that the police had probable cause to detain her. Due
to the limited nature of our grant of allocatur, we must accept the conclusions of the Superior Court that Officer Levins
did not illegally obtain Appellant's claim ticket number and that the police had probable cause to detain Appellant. See
School District of Scranton v. Dale and Dale Design and Development, Inc.,
559 Pa. 398, 741 A.2d 186, 189 n. 2 (1999) (lower court's determination final as to issues not included in allocatur grant). Consequently, we limit our decision today
to reviewing the validity of Appellant's consent to search on the assumption that
Appellant was subject to a lawful custodial detention (i.e., one supported by probable cause) at the time the
police requested her consent to search.
Appellant contends that when the police present a suspect with
the choice of consenting to a search or waiting under detention while the police apply for a warrant, the consent of the suspect
is involuntary. In support of this argument, Appellant relies on Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Bumper, the police approached the owner of a home where the suspect lived and informed her that they had a search warrant. After
being told by the authorities that they had a warrant, the homeowner allowed them into the house, **971 where the police discovered a rifle believed to be an instrument of crime. When the defendant moved to suppress the rifle,
the prosecutor declined *335 to rely on the search warrant [FN4] and instead argued that the homeowner had consented to the search. The lower courts denied the suppression motion. The United
States Supreme Court granted certiorari and reversed, holding that "[w]hen a law enforcement officer claims authority
to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation
is instinct with coercion--albeit colorably lawful coercion. Where there is coercion there cannot be consent." Bumper, 391 U.S. at 550, 88 S.Ct. 1788.
FN4. The record was not clear as to why the prosecution could not rely on the search warrant at the suppression hearing. Bumper, 391 U.S. at 550 n. 15, 88 S.Ct. 1788.
We believe that Bumper is distinguishable from the instant case. In Bumper, the police represented that they were already in possession of a warrant and, consequently, the homeowner had no choice but
to permit the officers to enter her home. Here, by contrast, the officers did not represent that they had a search warrant,
such that Appellant's consent would be no more than acquiescence to lawful authority. Rather, the officers specifically informed
Appellant that they did not possess a warrant and that she was free to decline permission to search her bag.
When they simultaneously told her that if she refused to consent they "would have to get a search warrant," the officers simply
advised her, truthfully, of the consequences of denying permission. We do not find Appellant's decision to allow the police
to search her bag to be comparable to the situation of the homeowner in Bumper who, once told that the officers who wished to enter her house had a warrant, could not refuse.
We further reject the
argument of Appellant that a consent to search in the context of a lawful custodial detention is per se involuntary
when the police advise the suspect that they "would have to get a search warrant" if the suspect refuses to permit the search. Such a per
se rule would make it impossible for the police to ask for consent to search whenever they have probable cause to detain
the suspect and accurately advise the suspect of the consequences of refusing permission. *336 The statement by the police that they "would have to get a search warrant" is merely a factor, but not a dispositive one,
in the totality of the circumstances that a court must review in determining whether the police coerced the individual into
consenting to the search. [FN5]
FN5. Appellant alternatively advocates that we adopt a rule invalidating consent whenever the police inform a suspect that they
"will" obtain a warrant, or where the police lack probable cause when they tell the suspect that they would apply for a warrant.
The former situation, according to Appellant, is no different than the submission to lawful authority that the Court found
vitiated any basis for consent in Bumper; the latter scenario is inherently coercive because the choice presented to the suspect is based on a false premise when the
police lack the probable cause necessary to obtain a warrant.
We decline to adopt any of the bright-line approaches suggested by Appellant and leave to trial courts the determination
of whether particular
police conduct, in the circumstances of each case, is coercive.
Accordingly, we examine the
situation of Appellant to determine whether, under the totality of the circumstances, her consent to the search of her suitcase
was voluntary. Unquestionably, the police did more than we have previously required of them when they specifically advised
Appellant that she had the right to refuse them **972 permission to search. See Strickler, 757 A.2d at 901 ("while knowledge of the right to refuse consent to search is a factor to be taken into account, the Commonwealth is not
required to demonstrate such knowledge as a prerequisite to establishing voluntary consent"). Although the police informed
Appellant that they "would have to get a warrant" if she refused her consent, this accurate statement informed Appellant of
the true nature of her predicament, i.e., that she was not free to leave even if she denied the police permission to search.
As such, it is not a coercive tactic by the police. Appellant waited ten minutes prior to signing the consent form, which
indicates that her consent was the product of a considered deliberation. Furthermore, the police officers were polite and
allowed Appellant time to decide without pressuring her with additional urging while she made her decision. These factors
support the conclusion of the suppression court that Appellant voluntarily consented to the search of her bag.
We affirm the Judgment of the Superior Court.
*337 Former Chief Justice FLAHERTY did not participate in the decision.
Justice SAYLOR files a Concurring Opinion.
Justice NIGRO files a Dissenting
Opinion, in which Chief Justice ZAPPALA joins.
Justice SAYLOR, concurring.
I agree with the lead opinion's analysis distinguishing Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), rejecting a per se rule invalidating consents to search obtained during custodial interrogations, and applying a
totality-of-the-circumstances approach in assessing the voluntariness of Appellant's consent to search in the present case.
With regard to the totality assessment, however, although certainly the lead opinion aptly summarizes the range of non-coercive
factors, I write because I believe that the coercive factors involved should be afforded substantial weight in these paradigms.
While
an arrest does not per se render consent involuntary, see United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976), it nevertheless militates against a finding of consent, making the Commonwealth's burden more difficult. See Commonwealth v. Smith, 470 Pa. 220, 228, 368 A.2d 272, 277 (1977) (explaining that "custody, while not determinative in itself, places a heavy burden in showing that consent was voluntarily
given" and noting that "custody when coupled with other coercive factors, will normally necessitate the conclusion that the
consent is not effective"). In this regard, numerous factors have been identified as bearing upon the voluntariness of consent, [FN1] and where an individual is in custody at the time he purportedly consents to a search, the environment attending the detention
should also be considered *338 as integral to the totality assessment. See generally United States v. Smith, 260 F.3d 922, 924 (8th Cir.2001); 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT, § 8.2(b), at 646-47 (3d ed.1996) [hereinafter
"LAFAVE, SEARCH AND SEIZURE"]. The environmental considerations **973 include, inter alia, whether the arrest was made with a display of weaponry or required the use of force against the
defendant; whether the defendant was physically restrained; the time and length of the detention; the location of the detention;
and whether the custody was used as leverage in obtaining consent. See id. Additionally, a coercive dynamic has been
discerned from the airport setting, see, e.g., United States v. Worley, 193 F.3d 380, 387 (6th Cir.1999) (quoting United States v. Berry, 670 F.2d 583, 596 (5th Cir.1982) (en banc)), albeit of a lesser degree than involved in stationhouse interrogation.
FN1. These circumstances include, among others, the existence of custody, duress, or coercive tactics by police; the defendant's
education, sophistication, intelligence, and knowledge of his right to refuse consent; whether the defendant believed that
no incriminating evidence would be discovered; and the extent and level of the defendant's cooperation with police. See
Commonwealth v. Cleckley, 558 Pa. 517, 527 n. 7, 738 A.2d 427, 433 n. 7
(1999).
As with the circumstance of custody, a statement by police that they will obtain a search warrant if
the defendant refuses to consent does not per se render the consent involuntary. See generally LAFAVE, SEARCH
AND SEIZURE § 8.2(c), at 651 n. 77 (collecting cases); Note, Consent to Search in Response to Police Threats to Seek or
to Obtain a Search Warrant: Some Alternatives, 71 J. CRIM. L. & CRIMINOLOGY 163, 165 n. 21 (1980) (same). The officer's
statement should nevertheless be treated as a significant factor within the totality assessment, see generally Stephenson v. State, 494 S.W.2d 900, 904-05 (Tex.Crim.App.1973) (describing a police assertion that they would obtain a warrant as an important factor in the totality assessment), the weight
of which may vary depending upon the language used by the officer. For instance, advising an individual that the police will
seek or apply for a search warrant should be distinguished from a statement indicating that the officer will obtain a warrant.
See United States v. Boukater, 409 F.2d 537, 538 (5th Cir.1969); State v. Harmon, 910 P.2d 1196, 1207 (Utah 1996). [FN2] In the latter circumstance, *339 the officer may be overstating his authority by suggesting that a search is inevitable and that the withholding of consent
will be futile. [FN3] Of additional consequence, the existence of probable cause to support the issuance of a search warrant impacts upon the assessment
of the statements made by the police. See generally LAFAVE, SEARCH AND SEIZURE § 8.2(c), at 653 nn. 83-84 (collecting
cases and explaining that "[t]his proposition rests upon the conclusion that the 'threat' in such circumstances does not involve
any deceit or trickery, but instead accurately informs the individual of his precise legal situation").
FN2. While undue weight should not attach to distinctions based upon differences in semantics, the nature of the communication
is a proper
consideration within the totality assessment. See United States v. Tompkins, 130 F.3d 117, 122 (5th Cir.1997).
FN3. In my view, such a statement more closely parallels the situation in Bumper.
Here, although the police indicated that they "would" obtain a search warrant if Appellant declined to
give her consent, I believe that probable cause existed to conduct a search based upon their corroboration of the information
provided by the Houston Police Department and, significantly, the alert by the canine to the suitcase claimed by Appellant.
See United States v. Williams, 69 F.3d 27, 28 (5th Cir.1995) (stating that "[a] drug-sniffing canine alert is sufficient, standing alone, to support probable cause to search"). [FN4] More important is the effect of Miranda warnings upon the voluntariness of consent, as the police advised Appellant of her constitutional **974 rights. Having been warned that anything she said could be used against her, Appellant's decision to sign the consent to search
form, permitting the officers to inspect her suitcase and discover the incriminating evidence, is indicative of an absence
of coercion. Cf. United States v. Jones, 475 F.2d 723, 730 (5th Cir.1973); Commonwealth v. Pytak, 278 Pa.Super. 476, 488, 420 A.2d 640, 646 (1980) (citing United States v. Menke, 468 F.2d 20 (3d Cir.1972), for the proposition that "the provision of *340 a Miranda warning alone, followed by a consent to search is not only persuasive but controlling on the question of voluntariness").
FN4. Other jurisdictions have been more circumspect, requiring the suppression court to consider the reliability of the canine
in the probable cause analysis. See State v. England, 19 S.W.3d 762, 768 (Tenn.2000). Notably, the Houston Police Department supplied information concerning the background, training, and experience of the canine
that was used in this case.
In summary, although affording substantial weight to the coercive dynamics
involved, in light of the entire circumstances presented, I am able to join the disposition directed by the lead opinion.
Justice NIGRO, dissenting.
I dissent. Appellant was detained by the police and given no more than what amounted to a Hobson's choice--give consent to an immediate search of her bag or refuse to give consent, and have the bag
searched anyway. Under these circumstances, where there was no true choice presented, I simply cannot agree with the majority's
conclusion that Appellant's consent was constitutionally valid.
Under both the Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution, warrantless searches and seizures are unreasonable, and therefore prohibited, except for
a few established exceptions, one of which is consent. Commonwealth v. Williams, 547 Pa. 577, 692 A.2d 1031, 1034-35 (1997). In order for the consent to be valid, the Commonwealth must prove that the consent was the product of an essentially free
and unconstrained choice, and not the result of duress or coercion, express or implied, or a will overborne. Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 901 (2000).
Here, at 7:00 p.m. the Houston Police Department notified the Philadelphia Police Department that a drug-sniffing dog
in Houston had detected drugs in a piece of luggage on Northwest Flight 1086, scheduled to arrive in Philadelphia at 11:04
p.m. Five Philadelphia police officers went to the Philadelphia airport and waited for the airplane. Four hours after the
Philadelphia police received the information from the Houston police, Appellant arrived in Philadelphia on Flight 1086 and claimed a bag matching the description given by the Houston police. Philadelphia Police Officer
Michael Levins confronted *341 Appellant as she attempted to leave the airport, identified himself as an officer, and asked to see her baggage claim ticket.
The officer took the claim ticket from her hand, picked up the bag, and asked her to accompany him to the airport security
office.
Although the police did not formally arrest Appellant at that point, the record clearly establishes that from the
time Appellant was escorted to the airport security office she was not free to leave. [FN1] (N.T., **975 5/4/95, at 35.) After confining her in the security office with three police officers and two airline employees, the police
informed Appellant that she was suspected of carrying drugs in her bag, provided her with Miranda warnings, [FN2] interrogated her, and presented her with a consent to search form. The police told her that she could decide whether to sign
the form, but that if she refused, they would simply get a warrant to search the bag. The police detained Appellant in the
security office for over ten minutes until she agreed to sign the form.
FN1. Pennsylvania case law recognizes three categories of interaction between police and citizens. See In the Interest of S.J., 551 Pa. 637,
713 A.2d 45, 47 n. 3 (1998). The first of these is a "mere encounter," or request for information, which need not be supported by any level of suspicion,
but carries no official compulsion to stop or to respond. Id. The second, an "investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and a
period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest.
Id. Finally, an arrest or "custodial detention" must be supported by probable cause. Id. Probable cause exists where the facts and circumstances within the officer's knowledge are sufficient to warrant a person
of reasonable caution in the belief that an offense has been or is being committed. Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203, 206 (1994).
FN2. See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).
If, as the Superior Court below concluded, the police had probable cause to arrest Appellant when they
first approached her, they would have been justified in subjecting her person and her bag to a full search incident to arrest.
See Commonwealth v. Shiflet, 543 Pa. 164, 670 A.2d 128, 130 (1995) (scope of search incident to arrest extends into the area within the arrestee's immediate control). The fact that the police did not
*342 arrest Appellant, however, can only lead to the conclusion that the officers did not believe they had probable cause prior
to searching Appellant's bag. [FN3] It seems clear that the police believed they needed to obtain the suspected drugs in Appellant's bag in order to possess
the probable cause necessary to arrest her. This presented an interesting dilemma for the police--they believed they needed
to search Appellant's bag to obtain probable cause to arrest her, but in order to search her bag, they needed either probable
cause for a warrant or consent to search. However, rather than following proper procedures to legally obtain access to Appellant's
bag, the police, in my view, circumvented the law by inducing Appellant's consent to search her bag. [FN4] The police did not have a warrant, had not applied for one, and in fact, based on their conduct, did not even believe they
possessed the probable cause necessary to secure one. Yet despite their apparent belief that they lacked probable cause, the
police nonetheless told Appellant that, absent her consent to the search, they *343 would go ahead **976 and get a warrant. [FN5] In doing so, the police conveyed the message that issuance of the warrant was inevitable and therefore, it was futile to
deny permission to search. These circumstances make it abundantly clear that in the end, the police simply did not present Appellant with the true nature of her options, which served to eliminate any real choice Appellant had regarding
her consent to the search and in turn, negated her constitutional right to refuse consent.
FN3. The police obviously suspected that Appellant's bag contained drugs. Based on the information received from the Houston police,
along with the other factors present, there was sufficient reasonable suspicion to justify an investigative detention of Appellant.
FN4. Although I am strongly in favor of the police having at their disposal the necessary law enforcement techniques and tools
to effectuate arrests and protect the public from the scourge of illegal drugs, there are constitutional and procedural rules
applicable to those techniques and tools which, if violated, render a search illegal. See, e.g., Pa.R.Crim.P. 200-211 (governing issuance and execution of search warrants); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 895-99 (1991) (tracing unique history of Pennsylvania's constitutional protection against unreasonable searches and seizures); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283, 1291 (1979) (right to be free from unreasonable searches under the Pennsylvania Constitution is tied to the implicit right
to privacy in this Commonwealth). I do not believe, however, that the guarantees against unreasonable searches
and seizures should be curtailed as a means of increasing efficiency in law enforcement. See Commonwealth v. Yastrop, 564 Pa. 338, 768 A.2d 318, 357-61 (2001) (Nigro, J., dissenting) (efficiency of DUI roadblocks does not override the cumulative privacy interests of all motorists).
See generally Steven Wisotsky, Crackdown: The Emerging "Drug Exception" to the Bill of Rights, 38 Hastings L.J. 889 (1987) (tracing the retreat from the historic constitutional mission of shielding citizens from governmental overreaching in the
name of doing whatever is deemed necessary or expedient in waging the war on drugs).
FN5. I believe it is significant that the police informed Appellant that if she did not consent to the search they would get a
warrant, rather than stating that the police would have to attempt to secure a warrant if she declined consent. (N.T., 5/4/95,
at 15, 29, 30-31.) The majority finds that the police advised Appellant that they would apply for a warrant if she
denied them permission to search. Maj. Op., at 970 (emphasis added). However, based on the testimony of record, the police
advised Appellant that she could sign the consent to search form or they would get
a warrant. (N.T., 5/4/95, at 15, 29, 30-31.)
Furthermore, unlike the majority, I believe that
Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), supports a conclusion that Appellant's consent was coerced. In Bumper, four police officers approached the owner of a home, the defendant's grandmother, and announced that they had a warrant to
search her house. Although the officers did not produce a warrant, the homeowner allowed them into her home, where the police
discovered a rifle believed to be an instrument of crime. The defendant moved to suppress the evidence seized, and the prosecution
relied upon the alleged consent of the homeowner to justify the search. [FN6] The United States Supreme Court concluded:
FN6. The majority states that the record is unclear as to why the prosecution in Bumper could not rely on the search warrant to justify the search. Maj. Op., at 6 n. 4. However, the prosecution, for unknown reasons,
chose not to rely upon the validity of the warrant. Bumper, 391 U.S. at 546, 549-50, 88 S.Ct. 1788. In fact, the Supreme Court explained that no warrant was ever returned, and there is no way of knowing the conditions under
which it was issued, or determining whether it was
based on probable cause. Id. at 550 n. 15, 88 S.Ct. 1788.
When a law enforcement officer claims authority to search a home under a warrant, he announces in effect
that the occupant has no right to resist the search. The situation is instinct with coercion--albeit colorably lawful coercion.
*344 Where there is coercion there cannot be consent. We hold that [the homeowner] did not consent to the search, and that it was
constitutional error to admit the rifle in evidence against the [defendant].
Id. at 550, 88 S.Ct. 1788 (citation omitted).
Like in Bumper, the police in the instant case claimed lawful authority to search Appellant's bag, thereby communicating to Appellant that
she had no right to resist the search. The only difference is that the police in this case claimed they merely had to go get
the warrant, at the expense of their time and trouble, whereas in Bumper the police claimed they already had the warrant in their possession. This is, however, simply a difference without distinction.
The police in the instant case detained Appellant and told her that if she refused to consent to a search, they would simply
go get a warrant. In my view, this is the type of coercive consent that Bumper forbids. Accordingly, I dissent.
Chief Justice ZAPPALA joins in this dissenting opinion.
Pa.,2002.
Com. v. Mack
568 Pa. 329, 796 A.2d 967
END OF
DOCUMENT
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