Com. v. Dowds

761 A.2d 1125

563 Pa. 377

COMMONWEALTH of Pennsylvania, Appellee, v. Paula DOWDS, Appellant.

Supreme Court of Pennsylvania.

Submitted March 8, 2000.

Decided November 22, 2000.

David S. Shrager, Philadelphia, for P Dowds, Appellant.

Robert A. Willig, Pittsburgh, for Commonwealth of PA, Appellee.

Before, FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

SAYLOR, Justice.

In this appeal, we must assess the validity of an airport encounter between Appellant and law enforcement officers.

On January 24, 1996, Trooper Anthony Ravotti of the Pennsylvania State Police and Officer Gary Petruzzi of the Allegheny County Police Department were assigned to narcotics interdiction at the Pittsburgh International Airport. Their duties consisted, inter alia, of observing passengers on incoming flights from "source cities," such as Los Angeles and New York. While watching passengers disembark from a Los Angeles flight, Trooper Ravotti noticed Appellant, Paula Dowds ("Dowds"), a well-dressed African-American woman wearing a long black fur coat, who was the last person to leave the plane. This struck Trooper Ravotti as unusual, since the flight attendants generally exit after the passengers. Dowds was holding a large, powder blue carry-on bag that was stained with what appeared to be tar. Trooper Ravotti related his observations to Officer Petruzzi, and they began following Dowds as she slowly proceeded along the main concourse of the airport, scanning the area along the way, at one point dropping her bag and dragging it. The officers thought that this conduct was unusual considering Dowds' expensive attire. On several other occasions, Dowds stopped and appeared to perform a 360-degree scan of the area. When Dowds reached the connecting gate for New York's LaGuardia Airport, she used a payphone, making several calls of short duration, then stood at the payphone with her finger on the hang-up lever. Officer Petruzzi asked an airline attendant at the gate to check the passenger manifest for females with connecting flights from Los Angeles to New York, and was advised that only two individuals were listed, both males. Officer Petruzzi then went to the baggage matrix and discovered a suitcase for the New York flight with a computer-generated registration for "Paula Douds" and a handwritten tag for "Paula Dowds." Further, he asked an airline agent to re-check the New York flight's passenger list, and on this occasion was advised that a "Paula Douds" was listed and had registered a piece of luggage. An officer was stationed to watch Dowds' suitcase, and a canine officer was summoned.

At this point, Officer Petruzzi and Trooper Ravotti approached Dowds, identified themselves, explained that they worked in narcotics and contraband interdiction, and that they would like to talk to her, to which Dowds agreed, later testifying that Officer Petruzzi "was very kind." Officer Petruzzi and Trooper Ravotti were wearing plain clothes and carried no visible weapons. Dowds was asked to produce her airline ticket, which she did. The ticket indicated a last name of "Douds" and its folder evidenced a tear where a baggage claim tag is normally affixed. Dowds also produced a New York driver's license, showing her last name as "Dowds." When asked if she had checked a suitcase for her trip to New York, Dowds stated that she had not, and upon being told that there was a bag at the baggage claim area with tags indicating both spellings of her last name, Dowds denied ownership. Officer Petruzzi asked Dowds if they could look through the bag, to which she responded, "It's not my bag. You can look through it if you want." Trooper Ravotti remained with Dowds, while Officer Petruzzi returned to the baggage matrix to arrange a canine sniff of the suitcase. Thereafter, Dowds asked Trooper Ravotti if she could use the restroom, and he advised her, "Sure. You're not under arrest. We're not detaining you at this time. You can do what you want to do." Dowds used the ladies' room and returned to the gate. During the canine sniff, the dog alerted to Dowds' suitcase, indicating the presence of narcotics. Officer Petruzzi then brought the suitcase to the gate area where Dowds was sitting, at which point she again denied ownership and told the officers that they could look inside it. Dowds was advised that she would be detained until a search warrant could be secured. Upon receipt of the warrant, the police forcibly opened the suitcase, finding 32.76 pounds of marijuana,¹ and Dowds was charged with possession with intent to deliver a controlled substance.

Prior to trial, Dowds moved to suppress, asserting that the police lacked either reasonable suspicion or probable cause when they initially approached her, and that she was stopped solely because of her race. Dowds thus argued that the subsequent search of the luggage was tainted by prior illegality. Following a hearing, the suppression court denied Dowds' motion, finding that the initial contact between her and the police did not constitute a seizure, but rather, was a mere or consensual encounter, which did not require any level of suspicion. The court also found that Dowds' denial of ownership in the face of information to the contrary created reasonable suspicion supporting the officers' actions in subjecting her suitcase to a canine sniff. Citing the result of the canine sniff, Dowds' further denial of ownership, and other circumstantial evidence, the court concluded that the police had probable cause to effectuate an arrest. Dowds proceeded to a non-jury trial, stipulating to the facts as adduced at the suppression hearing, and was found guilty and sentenced to three to six years of imprisonment.

On appeal, the Superior Court affirmed in a memorandum decision, agreeing with the suppression court's conclusion that the initial interaction between Dowds and the police was a consensual encounter. In reaching this conclusion, the Superior Court relied upon the reasoning from the Opinion in Support of Affirmance in Commonwealth v. Boswell, 554 Pa. 275, 721 A.2d 336 (1998) (equally divided court), which addressed a similar issue. With respect to the canine sniff of the suitcase, the Superior Court determined that it was permissible, given Dowds' denial of ownership. This Court allowed appeal to address these conclusions.²

In their respective arguments to this Court, Dowds and the Commonwealth rely upon the opinions from Boswell. For her part, Dowds maintains that she was seized when the police initially approached her and that the seizure was unlawful, as it was not founded upon reasonable suspicion or probable cause, but rather, drug courier profile criteria of a generalized nature. As a result, Dowds claims that she was intimidated and did not "make an informed, knowing waiver of her rights." In this regard, Dowds urges this Court to adopt the reasoning set forth in the Opinion in Support of Reversal from Boswell, acknowledging that the average citizen does not feel that he can ignore a police officer's request for information and requiring police to advise persons whom they approach that, inter alia, they do not need to comply and are free to leave. Had she been so advised, Dowds asserts that she would have admitted ownership of the suitcase and instructed the officers to leave her alone. The Commonwealth responds that the circumstances surrounding the interaction between Dowds and the police establish that she was not seized, and that the contact was a mere encounter. Consequently, the Commonwealth asserts that the drug courier profile criteria are not at issue. In addition, the Commonwealth reasons that adopting the Opinion in Support of Reversal from Boswell would eliminate the concept of a consensual encounter, which is inconsistent with this Court's search and seizure jurisprudence. Finally, the Commonwealth contends that the search of Dowds' suitcase was proper, as her statements indicated that she either voluntarily consented to the search or abandoned any privacy interest by denying ownership.

In Boswell, this Court considered the nature of police contact with a defendant in the context of narcotics interdiction at the Philadelphia International Airport. There, the police approached the defendant for reasons similar to those offered in the present matter, namely, arrival from a "source city," nervous appearance, and repeated scanning of the area. After the defendant retrieved a piece of luggage and proceeded to leave the airport, two officers, who were in plain clothes and not visibly displaying any weapons, approached the defendant, identified themselves and asked if they could speak with her. The defendant agreed, and when the officers asked if they could look in her suitcase, she assented. The subsequent search revealed a large amount of marijuana. The trial court granted the defendant's motion to suppress; however, following a Commonwealth appeal, the Superior Court reversed, concluding that the defendant was not seized at the time she gave consent to search. This Court was equally divided on the issue of whether the defendant was subjected to a seizure at the time the police approached her.

The Opinion in Support of Affirmance noted that neither the Fourth Amendment of the United States Constitution nor Article I, Section 8 of the Pennsylvania Constitution prohibits an officer from approaching a citizen in public and making inquiries, and only when an officer by means of physical force, or by display or assertion of authority, restrains the liberty of a citizen does a seizure occur. See Boswell, 554 Pa. at 283, 721 A.2d at 339-40. In determining whether a seizure has occurred, the Opinion in Support of Affirmance explained that Pennsylvania has applied an objective test, which looks to the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that he was "free to decline the...