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Consent given by a suspect was not coerced when the police informed the suspect that they would obtain a search warrant if she refused permission to search, a deeply divided Pennsylvania Supreme Court has ruled in an opinion announcing the judgment of the court. The decision affirms rulings of the Philadelphia Court of Common Pleas and the Superior Court. Justice Sandra Schultz Newman wrote the lead opinion in Commonwealth v. Mack, to which Justice Ronald D. Castille signed on. Justice Russell M. Nigro filed a dissenting opinion, and Chief Justice Stephen A. Zappala joined. Justice Thomas Saylor filed a concurring opinion. In Mack, a Philadelphia police officer received a telephone call from a Houston police officer. The Houston officer told the Philadelphia officer that a narcotics-detecting dog indicated the presence of drugs in a piece of luggage headed to Philadelphia on a commercial flight. The Philadelphia officer was given the flight number, a description of the luggage, the baggage claim number for the piece of luggage and a description of Mack, who checked the luggage, according to the opinion. The Philadelphia officer, accompanied by four other officers, met the flight at the Philadelphia airport to investigate the tip. The officers observed a bag fitting the description given by the Houston officer, and watched Mack pick up the bag. An officer then followed Mack and observed that she had a baggage claim ticket in her hand. He approached Mack and asked if he could examine her ticket. She allowed him to do so, and the number on her claim ticket matched the number given to the officer by the Houston Police Department, the opinion stated. The officer then asked Mack to go with him to an office about 30 feet from the baggage claim area. Once in the office, Mack was told that she had been stopped on suspicion that she was transporting drugs. Mack was then asked for permission to search her bag, Newman wrote. According to the opinion, Mack was advised by the officers that if she refused the search, she would be detained while the officers obtained a search warrant. Mack then read a “consent to search” form and signed the form 10 minutes later. During the search, 25 pounds of marijuana were found in the bag, Newman stated. Mack then moved to suppress the contents of the bag, arguing, according to the opinion, that her consent to the search was coerced and was, therefore, invalid, because the police advised her that they would seek a warrant if she denied permission to search. Mack based her argument on the U.S. Supreme Court’s ruling in Bumper v. North Carolina that held that when a law enforcement officer claims authority to search a home under a warrant, he effectively announces 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,” the high court wrote. In Bumper, the police approached the owner of a home where a suspect lived. The police told the owner they had a warrant to search the home. The owner then let the police into the home. While inside, the police found a rifle that they believed was used in a crime. The defendant moved to suppress the rifle. The prosecutor declined to rely on the search warrant and argued that the homeowner consented to the search. The Pennsylvania Superior Court said that Bumper was not applicable to Mack’s case. In Bumper, the court said, the police said that a warrant had been obtained and that the owner had no option other than letting the police enter the home. In Mack, the court reasoned, the officers specifically told Mack that they did not have a warrant, that she could decline permission to search her bag and that if she did decline, they would obtain a warrant. “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,” Newman wrote. The court also rejected Mack’s argument that the consent to search during a lawful custodial detention is involuntary per se in all situations where the police tell the suspect that a warrant will be obtained if the search is refused. Instead, the court said that a totality of the circumstances rule should be applied. “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,” Newman wrote. “We decline to adopt any of the bright-line approaches suggested by appellant and leave to the trial courts the determination of whether particular police conduct, in the circumstances of each case, is coercive.” In this case, the court said, an analysis of the circumstances surrounding Mack’s agreement to the search amounted to a voluntary consent. The court considered the fact that Mack waited 10 minutes after reading the consent form before signing it, indicating that her consent came after considered deliberation. The court also determined that the police told Mack the truth when they told her they would seek a warrant if she did not consent to the search and, therefore, that the consent was not coerced. “These factors support the conclusion of the suppression court that appellant voluntarily consented to the search of her bag,” Newman wrote. In Saylor’s concurring opinion, he agreed with the lead opinion’s rejection of a pro se rule and adoption of a totality of the circumstances approach. However, he said that the commonwealth should be handed a more difficult burden in cases involving warrantless searches in proving that the suspect’s consent was not coerced. “I believe that the coercive factors involved should be afforded substantial weight in these paradigms,” Saylor wrote. He first turned to the commonwealth’s decision in Commonwealth v. Smith, which dealt with the issue of a consent made while under arrest. “While an arrest does not per se render consent involuntary, it nevertheless militates against a finding of consent, making the commonwealth’s burden more difficult,” Saylor determined. Saylor said Smith determined that placing a suspect in custody puts a heavy burden on the commonwealth in showing that consent was voluntarily given. Saylor then applied the reasoning in Smith to the issue before him. “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,” he said. “But the officer’s statement should nevertheless be treated as a significant factor within the totality assessment.” Turning to the issue of probable cause in Mack’s case, Saylor said that the officers had reason to search Mack’s bag, on the basis of the information provided by the Houston Police Department. “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,” Saylor wrote. In his dissent, Nigro opined that in order for a consent to be valid, the commonwealth must prove that the consent was the result of an unconstrained choice. Nigro said that the fact that the police did not arrest Mack until after searching her bag showed that they did not have probable cause prior to the search. “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 the bag, they needed either probable cause for a warrant or consent to search,” Nigro wrote. “The police, in my view, circumvented the law by inducing appellant’s consent to search her bag.” Nigro also found that Bumper supports Mack’s assertion that her consent was coerced. He said that, like Bumper, the Philadelphia police officers claimed that they had lawful authority to search Mack’s bag, communicating to her that she could not resist the search. The fact that the police in Bumper claimed they already had a warrant while the police in Mack did not was a distinction without a difference. The case was argued before Justice Michael Eakin took the bench.

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