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concluding that the police search did not fall within the "narrow confines" of the inevitable discovery doctrine because there was no "alternative justification" for the unlawful search, and emphasizing that police cannot invoke the inevitable discovery rule simply by claiming that they could have gotten a warrant
Summary of this case from Commonwealth v. CurryOpinion
No. 704 WDA 2013
12-23-2014
COMMONWEALTH of Pennsylvania, Appellee v. Delano E. PEREL, Appellant.
Stanley T. Booker, New Castle, for appellant. Cynthia A. Gilkey, Assistant District Attorney, West Middlesex, for Commonwealth, appellee.
Stanley T. Booker, New Castle, for appellant.
Cynthia A. Gilkey, Assistant District Attorney, West Middlesex, for Commonwealth, appellee.
BEFORE: PANELLA, J., OLSON, J., and WECHT, J.
Opinion
OPINION BY WECHT, J.:
Delano Perel appeals the judgment of sentence entered on March 27, 2013. We vacate Perel's judgment of sentence, and we remand for additional proceedings consistent with this opinion.
On April 21, 2011, Officer Louis Squatrito of the Hermitage Police Department responded to a report of an armed robbery. When he arrived at the scene, Officer Squatrito found Darius Holcomb hiding in the woods behind an apartment building. According to Holcomb, he and his former cellmate, Perel, departed together for an overnight trip on that evening. While traveling together (with Perel driving and Holcomb in the passenger seat), Perel announced that he needed to stop at his girlfriend's apartment. Perel pulled into an apartment complex, shut off the engine, and pulled a small brown leather bag from underneath the driver's seat.
Perel told Holcomb to “run it,” and Holcomb observed a handgun protruding from the leather bag. After Holcomb handed Perel approximately $100, Perel exited the vehicle and walked into one of the apartments, taking the leather bag with him. Holcomb ran into a wooded area that was adjacent to the apartment complex and called the police. Before Officer Squatrito arrived at the scene, Holcomb saw Perel—now accompanied by a black female—drive away in a tan Chevrolet.
Holcomb explained at trial that “run it” is slang for “give me your money.” Notes of Testimony Suppression (“N.T.S.”), 11/9/2011, at 13.
Chad Nych, another officer with the Hermitage Police Department, received a Mercer County 9–1–1 radio dispatch describing Perel, the unknown black female, and the tan Chevrolet. Officer Nych subsequently observed a tan Chevy Impala parked in front of the Sheetz convenience store on Route 18 in Hermitage. When Officer Nych approached the vehicle, he observed a black male matching Holcomb's description of Perel and a black female in the passenger seat. Officer Nych ordered Perel to exit the vehicle. Thereafter, Officer Nych searched Perel and discovered a bag of marijuana, currency, and a marijuana cigarette in Perel's pockets. Officer Nych then took Perel into custody.
Sergeant Donald Ott spoke with the female passenger, who he identified as Tony Smith, Perel's girlfriend. Sergeant Ott sought Smith's consent to search her apartment located at 1420 Parke Drive. Smith initially refused to consent to the search but later agreed. Smith signed a written consent form specifying that the police were searching for a black handgun, ammunition, and a “black or brown leather bag similar to a hygiene/shaving kit bag.” Notes of Testimony Suppression (“N.T.S.”), 11/9/2011, at 48.
In the rear bedroom of Smith's apartment, officers observed a small brown leather bag/shaving kit on the foot of the bed, which was consistent with Holcomb's description. Upon opening the bag, Captain Paul Jewell discovered marijuana, a handgun, ammunition, and condoms. Captain Jewell showed these items to Smith, who denied having any knowledge of them. Captain Jewell also searched two pieces of luggage that were beside the shaving kit. Therein, he found men's clothing and a receipt with Perel's name on it.
As a result of these events, Officer Squatrito filed a criminal complaint charging Perel with robbery, persons not to possess a firearm, forgery, firearms not to be carried without a license, theft by unlawful taking, receiving stolen property, delivery of a controlled substance, possession of a controlled substance, and possession of drug paraphernalia. On October 14, 2011, Perel filed an omnibus pretrial motion to suppress evidence. Therein, Perel argued that the warrantless search of his shaving kit and luggage was unconstitutional because Smith lacked the authority to consent to the search of his personal effects. Omnibus Motion for Pre-trial Relief, 10/14/2011, at 3 (unnumbered). On November 9, 2011, following a hearing, the trial court denied Perel's motion to suppress by opinion and order.After the trial court, sua sponte, severed the persons not to possess a firearm count from the information, Perel proceeded to a jury trial on that charge alone on November 14, 2012. On November 16, 2012, the jury found Perel guilty of persons not to possess a firearm. On March 25, 2013, Perel pleaded guilty to possession with intent to deliver, and the Commonwealth nolle prossed the remaining charges. On March 25, 2013, the trial court sentenced Perel to five to ten years' imprisonment for persons not to possess a firearm with a consecutive term of one to five years' imprisonment for possession with the intent to deliver.
18 Pa.C.S. §§ 3701(a)(1)(iii), 6105(a)(1), 4101(a)(1), 6106(a)(1), 3921(a), and 3925 ; 35 P.S. §§ 780–113(a)(30), 780–113(a)(16), and 780–113(a)(32), respectively.
On April 23, 2013, Perel timely filed a notice of appeal. On May 1, 2013, the trial court ordered Perel to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Perel timely complied. On May 31, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
Perel presents one issue for our consideration: “Did the trial court abuse its discretion in denying [Perel's] motion to suppress evidence where [Perel's] personal belongings were searched without a search warrant?” Brief for Perel at 4 (capitalization modified).
Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where ... the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (2010) (citations omitted).
“The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). This is so because “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Id. at 133–34, 99 S.Ct. 421 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) ). Thus, before a defendant may challenge a search or seizure on Fourth Amendment grounds, he or she must demonstrate a reasonable expectation of privacy in the place that was searched.
As articulated by Justice John Marshall Harlan in his oft-quoted concurrence in Katz v. United States, a person who challenges a search or seizure on Fourth Amendment grounds must demonstrate (1) that he or she had a subjective expectation of privacy, and (2) that his or her subjective expectation of privacy is one that society is prepared to recognize as reasonable and legitimate. 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). With regard to Perel's subjective expectation of privacy in the contents of his luggage and shaving bag, it is well established that the key inquiry is whether Perel “took normal precautions to maintain his privacy.” Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) ; Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (explaining that an individual exhibits a subjective expectation of privacy if he or she sought to preserve something as private). Instantly, Perel placed his possessions in an opaque leather bag. He then zippered that bag closed and stored it in the “back bedroom” of his girlfriend's apartment (specifically “on the foot of the bed”). N.T.S. at 49. Moreover, Perel did not inform Smith of the contents of the bag. Id. at 50.
At the suppression hearing, Captain Jewell testified that Smith denied having knowledge of the contents of Perel's shaving kit. N.T.S. at 50. The learned Dissent maintains that “[t]here was no evidence regarding what [Perel] may or may not have told [Smith] about his shaving kit.” Dis. Op. at 197, n. 1. Of course, if Perel had told Smith about the items in his bag then she would have known about them. Although we are limited to considering only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted, Jones, supra, we are not required to suspend logic and common sense.
The United States Supreme Court has held that searches of closed containers (i.e., personal luggage) intrude upon protected privacy interests as a matter of law. See New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (“[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.” (quoting United States v. Ross, 456 U.S. 798, 822–23, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) )). Hence, the search of Perel's luggage and shaving kit violated Perel's subjective expectation of privacy.
Turning to the second prong of the Katz test, Perel's subjective expectation of privacy must be one that society is prepared to recognize as reasonable. Katz, 389 U.S. at 361, 88 S.Ct. 507. No single factor determines the legitimacy of an individual's claim that a particular area should be free from warrantless government intrusion. Rakas, 439 U.S. at 152–53, 99 S.Ct. 421 (Powell, J., concurring). Our analysis may turn on factors such as (1) the intention of the Framers of the Fourth Amendment, Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ; (2) the uses to which an individual has put a particular location, Jones v. United States, 362 U.S. 257, 265, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ; and (3) society's understanding that certain areas deserve “the most scrupulous protection from government invasion.” Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).
The United States Supreme Court applied these principles in Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), concluding that a Border Patrol agent's physical manipulation of a bus passenger's carry-on luggage violated the Fourth Amendment. Id. at 338–39, 120 S.Ct. 1462. In that case, Bond, a passenger on a Greyhound bus, stored his green canvas bag in a storage compartment above his seat. When the bus stopped at a permanent border checkpoint, a Border Patrol agent physically squeezed and manipulated the contents of Bond's overhead bag. The agent felt a “brick-like” object in Bond's bag, which the agent later determined to be a “brick” of methamphetamine wrapped in duct tape. Id. at 336, 120 S.Ct. 1462.The Supreme Court rejected the government's contention that Bond did not maintain a reasonable expectation of privacy in a container that he exposed to public view:
When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here.
Id.
We find nothing in the instant matter that materially distinguishes this case from the circumstances in Bond. Perel stored his luggage and shaving kit in his girlfriend's bedroom along with his other belongings. This location is not any more “exposed to public view” than an overhead storage compartment on a Greyhound bus. Furthermore, the police opened Perel's luggage and shaving kit and explored their contents. Hence, the instant search was far more invasive than the agent's unconstitutional “physical manipulation” of Bond's canvas bag.
See also United States v. Jacobsen, 466 U.S. 109, 111, 114–15, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (suggesting that the warrantless search of an “ordinary cardboard box wrapped in brown paper” would have violated the Fourth Amendment had a private third-party not already opened it).
Indeed, the obvious function of an opaque zippered bag is to safeguard the privacy of the personal effects contained therein. See United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). (“Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects.” (emphasis added)). An understanding that personal, private effects are commonly stored in purses, backpacks, luggage, and duffel bags can be gleaned from a casual stroll down any sidewalk. The contents of persons' closed containers are obscured from public view and generally are recognized as private. This expectation of privacy becomes even more robust when a person's private, closed container is within the home of a loved one. Perel's luggage and shaving kit, therefore, are deserving of “the most scrupulous protection from government invasion.” Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).
Perel's belongings were not openly visible, or even accessible, to the general public. The opaque containers clearly belonged to Perel. They were closed. They contained personal items, including men's clothing and condoms. It beggars belief to suggest that our society would deem it unreasonable to expect that these personal items will be kept private. Perel's subjective expectation of privacy in the contents of his baggage, as evidenced by the totality of the circumstances, is one that society would recognize as reasonable. Having concluded that the suppression record demonstrates that Perel had a reasonable expectation of privacy in his luggage and shaving kit, we now must address whether the warrantless search of Perel's luggage falls within the consent exception to the Fourth Amendment's warrant requirement. The trial court ruled that it did, concluding that “[t]he search of [Perel's] brown leather bag ... was lawful in that there were no restrictions on the scope of [Smith's] consent.” Trial Court Opinion (“T.C.O.”), 11/10/2011, at 8 (unnumbered). Perel, on the other hand, contends that the scope of Smith's consent did not, and could not, extend to Perel's leather shaving kit and luggage because Smith did not have common authority, joint access, or mutual use of those items. Brief for Perel at 14. We agree.
When confronted with a factually analogous case, the Supreme Court of Arkansas reached the same conclusion. Moore v. State, 268 Ark. 171, 594 S.W.2d 245 (1980) (“There could hardly be anything which would be considered more private than a shaving kit which ordinarily includes one's toothbrush, toothpaste, shaving equipment, medication and other highly personal items.”).
In contrast, cases in which a defendant has failed to demonstrate a reasonable expectation of privacy in a particular area are both rare and self-evidently distinguishable.See California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (holding that society would not accept as reasonable a defendant's claim that he had a reasonable expectation of privacy in garbage that has been left outdoors for collection in an area accessible to the general public); California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (holding that the Fourth Amendment does not require that the police obtain a warrant before conducting surveillance of a fenced backyard from a private plane flying at an altitude of 1,000 feet).
We focus our analysis upon the searchof Perel's shaving kit. Nonetheless, the Dissent devotes a considerable amount of attention to emphasizing its belief that the seizureof the shaving kit was lawful. See Diss. Op. at 198, 201–02, 202, 202, 205, 205–06. Although it may be true that a seizure of the container prior to searching it would be constitutional, the record is not at all clear that such a sequence of events actually occurred. In other words, a seizure would be constitutional only if it happened beforethe search. However, Captain Jewell testified that he opened Perel's shaving kit immediately upon noticing it. N.T.S. at 49. Thus, the Dissent's insistence that the seizure was constitutional is not only immaterial to the ultimate resolution of the issue in this case, i.e., the constitutionality of the search of the kit, but it is also not even clear from the record that the kit was in fact seized before it was searched.
It is well-settled that a homeowner who lacks access to, or control over, a guest's private closed containers also lacks the authority to consent to a search of them.
A privacy interest in a home itself need not be coextensive with a privacy interest in the contents or movements of everything situated inside the home. This has been recognized before in connection with third-party consent to searches. A homeowner's consent to a search of the home may not be effective consent to a search of a closed object inside the home. Consent to search a container or a place is effective only when given by one with “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171 [94 S.Ct. 988, 39 L.Ed.2d 242] (1974). “Common authority ... rests ... on mutual use of the property by persons generally having joint access or control for most purposes....” Id. at 171, n. 7 .
United States v. Karo, 468 U.S. 705, 725, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (O'Connor, J., concurring) (citations modified).
The critical inquiry is not whether Smith had the authority to consent to the search of her own apartment, but rather whether she had the actual authority, or the apparent authority, to consent to the search of Perel's closed containers stored therein. Matlock, 415 U.S. at 171, 94 S.Ct. 988. It is clear that she did not. The Commonwealth presented no evidence at the suppression hearing that Smith had mutual use of, joint access to, or control of Perel's baggage. To the contrary, Captain Jewell testified that Smith denied having knowledge of the contents of Perel's shaving kit. N.T.S. at 50. Thus, the search of Perel's belongings can not be justified based upon Smith's actual authority to consent. As stated, we also must consider the possibility that Smith had the apparent authority to consent to a search of Perel's luggage and shaving kit. The Supreme Court of the United States has held that a warrantless search is lawful when it is based upon the consent of a third party who the police reasonably believe has common authority over the items to be searched, but who in fact does not have such authority. Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Our own Supreme Court has described this “apparent authority exception” to the Fourth Amendment's warrant requirement as follows:
A third party with apparent authority over the area to be searched may provide police with consent to search. Third party consent is valid when police reasonably believe a third party has authority to consent. Specifically, the apparent authority exception turns on whether the facts available to police at the moment would lead a person of reasonable caution to believe the consenting third party had authority over the premises. If the person asserting authority to consent did not have such authority, that mistake is constitutionally excusable if police reasonably believed the consenter had such authority and police acted on facts leading sensibly to their conclusions of probability.
Commonwealth v. Strader, 593 Pa. 421, 931 A.2d 630, 634 (2007) (citations omitted).
In Commonwealth v. Blair, 394 Pa.Super. 207, 575 A.2d 593, 598 (1990), we elucidated the narrow confines of the apparent authority exception.
[W]e are not allowing carte blanche consent entries into residences with the police officer being able to ratify his entry at a later date suppression hearing by merely stating that he was mistaken as to the actual authority of the consenting party. We hold that the police officer's reasonable mistake must be judged from an objective standard based on the totality of the circumstances. Although the police officer's state of mind is one factor to be considered in determining the reasonability of the mistake, it is not the only factor. Moreover, the police officer's mistake must be reasonable. In ambiguous situations, those situations which would cause a reasonable person to question the consenting party's actual authority or if the consenting party's assertions of authority appear unreasonable, a police officer should make further inquiries to determine the status of the consenting party. Reliance on a third party's bald assertion in such situations could subject any search to the remedy of the exclusionary rule.
Id. (footnote omitted).
Viewing the instant matter in light of these principles, the Commonwealth's attempt to show the legitimacy of Smith's consent falls short. The facts known to the police at the time of the search were such that an objectively reasonable officer would have concluded that Smith did not have authority to consent to the search of Perel's baggage. Indeed, Captain Jewell, at the suppression hearing, candidly described the search as follows:
District Attorney: After obtaining consent to search from [Smith,] what did you do next Captain?
Captain Jewell: I entered the apartment.
District Attorney: And you just walk in?
Captain Jewell: Because of the nature of the call, a gun involved, we cleared the apartment first to make sure no other persons were present and there were not.
District Attorney: Okay. And you searched the apartment?
Captain Jewell: Yes sir.
District Attorney: And what does that entail?
Captain Jewell: I ended up going to the back bedroom as part of the clearing. After I cleared it, I immediately saw a small bag, shaving bag, on the foot of the bed.
District Attorney: And what was it—when you observed it, what did you immediately notice?
Captain Jewell: It fit the description of what the victim had told me.
District Attorney: Okay. And what did you do next?
Captain Jewell: I opened it.
* * *
Captain Jewell: I did see two pieces of luggage on the bed containing men's clothing.
District Attorney: And did you search the luggage?
Captain Jewell: I looked through the luggage and I found a slip, a hotel receipt in the name of [Perel.]
N.T.S. at 48–49.
Based upon the totality of the circumstances, it was unreasonable for Captain Jewell to believe that Smith had the authority to consent to a search of a men's shaving bag or the two other pieces of luggage lying beside it. These items, as a matter of common sense, necessarily command a high expectation of privacy. The Commonwealth does not contend that Smith carried either item on her person. There were no markings, tags, or other inscriptions to suggest that Smith had joint access to, or co-ownership of, Perel's baggage. Under these circumstances, it belies common sense to infer that Smith had the authority to use, access, or control Perel's suitcase and shaving kit.
See 3 W. LaFave, Search and Seizure, § 8.5(d), at 307 (2d ed. 1987) (“Among the articles which it would seem would most commonly be deserving of the ‘high expectation of privacy’ label in the host-guest context would be the overnight bag or suitcase.”); United States v. Wilson, 536 F.2d 883 (9th Cir.1976) (holding that a homeowner's consent to search a guest's suitcase was invalid), cert. denied, 429 U.S. 982, 97 S.Ct. 497, 50 L.Ed.2d 592 (1976) ; cf. United States v. Sealey, 830 F.2d 1028 (9th Cir.1987) (holding that boxes and plastic buckets are not containers that are commonly used to preserve privacy and therefore the defendant's girlfriend's consent to search them was valid).
Furthermore, the police were acting in response to a report that Perel himself had brandished a leather shaving bag in the course of a robbery. According to Holcomb, Perel carried the leather shaving bag, with a black firearm concealed therein, into an apartment building on Parke Drive. After the police found and arrested Perel, Smith signed a written consent to search her apartment, which was located at 1420 Parke Drive. Among the items that officers listed on the consent form were a black handgun and a black or brown leather shaving bag. All of these facts, which the police knew at the time of the search, render any belief that Smith had authority to consent to a search of Perel's property objectively unreasonable. Thus, the warrantless inspection of the contents within Perel's luggage and shaving kit can not be justified as a lawful consent search. Having determined that the instant search was unconstitutional, we now must address the learned Dissent's contention that the evidence should not be suppressed because of the doctrine of inevitable discovery. According to the Dissent, the facts of this case do not merit application of the exclusionary rule because “there was ample evidence to establish probable cause in support of a warrant to search the contents of the shaving kit.” Dis. Op. at 202–03 (footnote omitted).
Although not binding upon us, our conclusion is supported by several Federal courts of appeals that have considered the apparent authority exception in factually analogous cases. United States v. Welch, 4 F.3d 761 (9th Cir.1993) (holding that officers had no reasonable basis to believe that the defendant's boyfriend's control over her purse meant that he had actual or apparent authority to consent to a search of it); United States v. Salinas–Cano, 959 F.2d 861, 864 (10th Cir.1992) (holding that defendant's girlfriend did not have apparent authority to consent to the search of his luggage because a reasonable person would have known that people generally retain a high expectation of privacy in closed suitcases).
The Supreme Court of the United States announced the inevitable discovery exception to the exclusionary rule in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The Nix Court held that the fruits of an unconstitutional search are admissible where “the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.” Id. at 444, 104 S.Ct. 2501. However, due to the concomitant protections afforded by Article I, Section 8 of the Pennsylvania Constitution, our inevitable discovery jurisprudence does not mirror its federal counterpart. Commonwealth v. Mason, 535 Pa. 560, 637 A.2d 251, 256 (1993). Our Supreme Court has explained this disparity as follows:
The Pennsylvania Constitution provides:
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
Pa. Const. art. I, § 8.
If our sole purpose in applying Article I, Section 8 to the facts of this case were to deter police misconduct, we would be constrained to rule in favor of the Commonwealth, for in balancing the interests, it is apparent that society's interest in arresting those guilty of serious crime should not be thwarted where police would inevitably and independently arrive at the same evidence, but for their illegal conduct. However, where our task is not merely to deter police misconduct, but also to safeguard privacy and the requirement that warrants shall be issued only upon probable cause, our conclusion is different.
Id. at 256.
In Commonwealth v. Berkheimer, 57 A.3d 171 (Pa.Super.2012) (en banc ), we discussed extensively the doctrine of inevitable discovery. In that case, the appellant's stepfather, knowing that the appellant was wanted on a probation detainer, provided the Pennsylvania State Police with information regarding the appellant's whereabouts. Id. at 174. When the police arrived at the address provided to them by the appellant's stepfather, they detected an odor of burnt marijuana wafting from the residence. Id. at 174–75. The officers entered into the home despite the fact that they did not have a warrant to do so. Id. at 175. Once inside, officers observed numerous glass marijuana pipes, a plastic bag and a pill bottle containing marijuana, and several rounds of pistol ammunition. Id. The officers then secured a warrant to search the residence (based, at least in part, upon the items that they observed during the prior illegal entry into the home). Id. That search revealed three additional small bags of marijuana and a digital scale. Id. at 176.Following his arrest, the appellant filed a motion to suppress all of the evidence seized by the police. The suppression court recognized that the troopers' search of the residence was unlawful, notwithstanding the belated issuance of a search warrant, but denied suppression. Specifically, the court reasoned that, because the smell of marijuana that the troopers detected provided probable cause for the issuance of a warrant, the evidence inevitably would have been discovered. Id. at 176 (citing Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) ).
On appeal, an en banc panel of this Court rejected the suppression court's logic, and held that the lower court erred in failing to suppress the evidence that was obtained pursuant to the search warrant. The Court further held that, where law enforcement officers engage in apparent misconduct by negating the warrant requirement, the Commonwealth only can avoid suppression by demonstrating a source “truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct.” Id. (quoting Commonwealth v. Mason, 535 Pa. 560, 637 A.2d 251, 257–58 (Cappy, J. concurring)).
The learned Dissent contends that Berkheimer is distinguishable from the instant case, largely based upon insignificant differences between the facts of the two cases. It is true that the facts of the instant case do not align perfectly with those from Berkheimer. However, we do not cite Berkheimer for its facts; rather, we cite that case for the indisputably applicable legal principle that emerged from that case and that is applicable here. The en banc panel of this Court in Berkheimer held that having probable cause to obtain a search warrant does not negate an otherwise illegal search. Berkheimer, 57 A.3d at 174 (holding that “the evidence seized was not subject to discovery by way of an independent source, and therefore is not purged of the taint of illegality”). In other words, the fact that police couldhave obtained a valid warrant (and, as the Dissent would hold, wouldhave obtained a warrant), does not excuse constitutional errors, unless a truly independent source can be shown. A fair reading of Berkheimer, in which the en banc panel reviewed all of the leading cases in this area, demonstrates that the principle that possessing probable cause to obtain a warrant is insufficient to overcome illegal searches applies broadly to all search and seizure cases. Berkheimer simply is not as limited as the Dissent maintains, and can offer no support to the Dissent's position.
Instantly, as in Berkheimer, the Commonwealth cannot satisfy these demanding requirements. The record is devoid of any suggestion that there was an alternative justification that would have permitted Captain Jewell to open and inspect the contents of Perel's shaving kit. The Dissent misconstrues the doctrine of inevitable discovery as an invitation for appellate courts to overlook patently unconstitutional searches whenever the police could have complied with the Constitution's warrant requirement, but instead consciously disregarded it. Unsurprisingly, the Dissent cites no authority to support such a constitutionally infirm precept. Far from a “discrete constitutional transgression,” See Dis. Op. 203, the idea that law enforcement officers may obviate the need to secure a search warrant based upon their own determination that sufficient probable cause exists is antithetical to the Fourth Amendment. As stated by Justice Robert Jackson in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) :
Tellingly, the Commonwealth did not—either at the suppression hearing or before this Court—argue that the contents of Perel's shaving kit would inevitably have been discovered.
Although the Dissent refers to the instant search as a “textbook” example of inevitable discovery, none of the cases that it cites stand for the proposition that the mere existence of probable cause is sufficient to justify application of the doctrine. See Commonwealth v. Van Winkle, 880 A.2d 1280, 1285 (Pa.Super.2005) (holding that the evidence in question would have inevitably been discovered when police conducted a full search incident to a lawful arrest); Commonwealth v. Ingram, 814 A.2d 264, 272 (Pa.Super.2002) (same); Commonwealth v. Hoffman, 403 Pa.Super. 530, 589 A.2d 737, 743 (1991) (same); Commonwealth v. Miller, 555 Pa. 354, 724 A.2d 895, 899, n. 5 (1999) (stating in dicta that evidence would have been admissible based upon the inevitable discovery doctrine, but failing to elaborate); Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 702 n. 11 (1998) (holding that trial counsel was not ineffective for failing to file a suppression motion where firefighters entered appellant's home and where appellant consented to a subsequent search on the following day); Commonwealth v. Garcia, 443 Pa.Super. 414, 661 A.2d 1388, 1392, n. 11 (1995) (holding that the appellant had waived his suppression issue on appeal, but stating in dicta that the contraband would inevitably have been discovered during a search incident to a lawful arrest); Commonwealth v. Speaks, 351 Pa.Super. 149, 505 A.2d 310, 313 (1986) (holding that, despite Miranda violation, discovery of evidence was inevitable where officers already had obtained a valid search warrant).
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity[.]
Id. at 11, 68 S.Ct. 367 (footnote omitted).
To hold that courts simply may make a post-hoc determination that sufficient probable cause existed at the time of an otherwise illegal search would be to eliminate the key safeguard that “delineat[es] the dignity of the individual living in a free society.” Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 899 (1991). Such an approach patently is at odds with the strong notions of privacy that are carefully safeguarded by Article I, Section 8 of the Pennsylvania Constitution. Id. (“[T]he exclusionary rule in Pennsylvania has consistently served to bolster the twin aims of Article I, Section 8 ; to-wit, the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause.”).
Stated simply, the inevitable discovery doctrine is not a substitute for the warrant requirement. Police must demonstrate that the evidence would have been discovered absent the police misconduct, not simply that they somehow could have lawfully discovered it. Instantly, the record is devoid of any suggestion that, absent Captain Jewell's unconstitutional search of Perel's shaving kit, the items would have been discovered. To hold otherwise, as the Dissent would do, would eradicate the need for police officers ever to obtain a constitutionally supported search warrant. Under the Dissent's view, police only need to seize the item or search the premises and then invoke the inevitable discovery doctrine with the assertion that they “could have obtained a warrant.” The inevitable discovery doctrine does not operate in such a constitutionally impoverished manner.
Because Perel had a reasonable expectation of privacy in his luggage and shaving kit, and because Smith could not validly consent to a search of those items and it was unreasonable for the police to believe that she possessed the authority to do so, the trial court erred in concluding that Smith lawfully consented to the warrantless search of Perel's private closed containers. Moreover, the search of Perel's belongings does not fall within the narrow confines of the inevitable discovery doctrine. Accordingly, we vacate Perel's judgment of sentence, order that the evidence subject to Perel's motion be suppressed, and remand for a new trial.
We note that, in his suppression motion, Perel challenged both the search of his shaving kit (which contained a firearm, ammunition, and three packets of marijuana) and the seizure of marijuana from his person at the time of his arrest. Nevertheless, because Perel pleaded guilty to possession with intent to deliver, he has waived all non-jurisdictional claims relating to that offense except for the voluntariness of his plea and the legality of his sentence. Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa.Super.2013). Hence, our conclusion that the trial court erred in denying Perel's motion to suppress evidence does not affect his guilty plea to possession with intent to distribute.
Judgment of sentence vacated. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.
Judge PANELLA joins the opinion.
Judge OLSON files a dissenting opinion.
DISSENTING OPINION BY OLSON, J.:
Because I believe that the trial court properly denied suppression, I would affirm Appellant's judgment of sentence. Hence, I respectfully dissent.
In this case, the learned majority concludes that Appellant established an expectation of privacy in the shaving kit recovered by police from Ms. Smith's apartment. Initially, the majority concludes that Appellant had a subjective expectation of privacy in the contents of his shaving kit because it was an opaque zippered bag, stored in Ms. Smith's bedroom, not exposed to public view, and because Appellant did not tell Ms. Smith about the contents of his shaving kit. Majority Opinion, at 188–90. Next, the majority concludes that society would recognize Appellant's privacy expectation in the contents of his shaving kit as reasonable. Majority Opinion, at 189–90. The majority also considers whether Ms. Smith had actual or apparent authority to consent to a search of the contents of Appellant's zipped shaving kit which he stored in her apartment. Id. at 191. The majority concludes that Ms. Smith lacked actual authority because she denied knowledge of the contents of the shaving kit. Id. The majority also concludes that it was unreasonable for police to believe that Ms. Smith had apparent authority to permit the police to search the contents of the shaving kit because: (1) it was a man's shaving kit; (2) there were no markings, tags or other inscriptions to suggest that Ms. Smith had joint access to or co-ownership of the bag; (3) police were acting in response to a report that Appellant himself brandished a leather shaving kit in the course of the robbery; and, (4) there was no evidence that Ms. Smith carried the shaving kit, or Appellant's other luggage, on her person. Id. at 192–93.
While the majority claims that Appellant “did not inform [Ms.] Smith of the contents of the bag[,]” Majority Opinion, at 189, the record, which must be viewed in the light most favorable to the Commonwealth as the prevailing party on Appellant's motion to suppress, does not support this assertion. Neither Appellant nor Ms. Smith testified at the suppression hearing. The only relevant testimony pertaining to this issue came from the officer who conducted the search of Ms. Smith's apartment. The officer testified that, upon showing Ms. Smith the contents of the shaving kit, she disavowed knowledge of the contents and permitted police to continue searching. N.T., 11/9/2011, at 48–49 (“I showed the items to the apartment renter, M[s.] Smith, and asked her if she knew about these and she said no.”). There was no evidence regarding what Appellant may or may not have told Ms. Smith about his shaving kit. In the absence of such testimony, I do not believe that it is proper to draw an inference against the Commonwealth as the prevailing party before the trial court.
The majority fails to distinguish between Appellant's shaving kit, as a container that outwardly displayed incriminating characteristics that were immediately apparent to the police when they lawfully entered Ms. Smith's bedroom, and the contents of Appellant's shaving kit that were revealed only after a search. This distinction is a critical component of any legal analysis tailored to the undisputed facts presented in this unique case. When this distinction is factored in to an examination of the current circumstances, I believe that the police were constitutionally justified in seizing Appellant's shaving kit under the plain view doctrine. First, there is no dispute that Ms. Smith had authority to consent to a search of her apartment, including her rear bedroom where Appellant openly stored his shaving kit. Thus, the police were at a lawful vantage point when they observed the shaving kit. Moreover, as demonstrated by the majority's recitation of the facts, the police immediately identified the incriminating features of the shaving kit based upon the victim's description of the shaving kit bag used by Appellant during the commission of a gunpoint robbery. Under these unique circumstances, the seizure of the shaving kit did not intrude upon Appellant's privacy interest or violate his Fourth Amendment rights. However, after careful consideration, I must concur in the learned majority's assessment that the ensuing warrantless search of the zippered shaving kit was not constitutionally justified. I cannot agree, however, that suppression is the appropriate remedy in view of the doctrine of inevitable discovery.
I refer here to the outward appearance of the shaving kit itself, not to its contents.
Our standard of review in addressing a challenge to the denial of a suppression motion is
limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. [... T]he suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (2010) (citations and quotations omitted).
“Both the Fourth Amendment to the United States Constitution and Article I, § 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures.” Commonwealth v. Gillespie, 2014 PA Super 245, 103 A.3d 115, 118 (citation omitted). These constitutional provisions have been interpreted as protecting “those zones where one has a reasonable expectation of privacy.” Commonwealth
v. Lawley, 741 A.2d 205, 209 (Pa.Super.1999) (citation omitted). “Not every search must be conducted pursuant to a warrant, for the Fourth Amendment bars only unreasonable searches and seizures.” Gillespie, at 118. “While a search is generally not reasonable unless executed pursuant to a warrant, the Supreme Court of the United States and [the Pennsylvania Supreme Court] have recognized exceptions to the warrant requirement.” Id. The United States Supreme Court has stated:
[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (internal citations omitted). As noted by Justice Harlan, in a concurrence in Katz,
As the Court's opinion states, ‘the Fourth Amendment protects people, not places.’ The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place.’ My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.
Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, concurring).
The United States Supreme Court decision in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) discusses the plain view doctrine in detail. In Horton, police officers investigating an armed robbery applied for a search warrant of the suspect's residence. The search warrant authorized a search for the proceeds of the robbery, but not the firearms used as described by the victim. During the course of the search, the police discovered the firearms in plain view and seized them. The defendant asked the California courts to suppress the weapons, but they denied relief.
In addressing the defendant's challenge to the denial of suppression, the Horton Court explained the prerequisites that must be met for the plain view exception to the warrant requirement:
It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. [Next], not only must the item be in plain view; its incriminating character must also be “immediately apparent.” [... Finally], not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.
Horton, 496 U.S. at 136–137, 110 S.Ct. 2301 (citations and footnotes omitted).
Relying upon Horton, this Court has described the plain view doctrine as follows:
[t]he plain view doctrine provides that evidence in plain view of the police can be seized without a warrant, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), as modified by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), and it was adopted by our Supreme Court in Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992). The plain view doctrine applies if 1) police did not violate the Fourth Amendment during the course of their arrival at the location where they viewed the item in question; 2) the item was not obscured and could be seen plainly from that location [and] the incriminating nature of the item was readily apparent; and [ (3) ] police had the lawful right to access the item.
Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa.Super.2012), citing Commonwealth v. Sodomsky, 939 A.2d 363, 370 (Pa.Super.2007).
This Court's en banc decision in Commonwealth v. Brown, 23 A.3d 544 (Pa.Super.2011), which involved a warrantless seizure of incriminating, but not illegal, items is instructive to the case herein. Brown robbed a gas station convenience store at gunpoint. A police officer on patrol witnessed Brown acting suspiciously before entering the store for one minute and then fleeing on foot. The police officer followed Brown in an unmarked police car and witnessed him get into a maroon mini-van and drive away. Police instituted a traffic stop and confirmed the robbery. An officer saw what appeared to be a black handgun inside the mini-van on the floor behind the driver's seat. Brown fled and police apprehended him. The police recovered the gun, which turned out to be a toy, and a black knit hat Brown wore during the commission of the robbery as reported by the victim. Prior to trial, Brown filed a motion to suppress the evidence that was denied. A jury subsequently convicted Brown. On appeal, an en banc panel of this Court affirmed the denial of suppression and Brown's judgment of sentence. In discussing the plain view doctrine, the Brown Court determined that “where police officers observe incriminating-looking contraband in plain view in a vehicle from a lawful vantage point, the lack of advance notice and opportunity to obtain a warrant provides the officers with a lawful right to access to seize the object in question.” Brown, 23 A.3d at 557. Although Brown dealt with the limited automobile exception to the warrant requirement in determining lawful right to access by police, the decision clearly established that the doctrine of plain view applies when police, from a lawful vantage point, witness an incriminating item used during the commission of a crime.
Our Supreme Court has now rejected Pennsylvania's limited automobile exception in favor of the full automobile exception embraced by the federal courts. See Commonwealth v. Gary, ––– Pa. ––––, 91 A.3d 102 (2014) (plurality).
Applying Horton and Brown to the instant matter, there can be no dispute that the officers saw Appellant's shaving kit from a lawful vantage point and that the incriminating nature of the shaving kit was immediately apparent to them.
I begin with an examination of whether police were at a lawful vantage point when they saw the shaving kit. This Court has previously determined:
It is axiomatic that a search warrant is not needed when a person with the requisite authority unequivocally and specifically consents to a search. Whether an individual has voluntarily consented to a search is one of fact which must be determined in each case from the totality of the circumstances. The Commonwealth
bears the burden of proving that a person consented to a warrantless search.
Commonwealth v. Rosas, 875 A.2d 341, 349 (Pa.Super.2005) (citations and quotations omitted). When police officers obtain the voluntary consent of a third party who has the authority to give consent, they are not required to obtain a search warrant based upon probable cause. Commonwealth v. Hughes, 575 Pa. 447, 836 A.2d 893, 900 (2003).
Here, the record confirms that Ms. Smith was the lessee of the apartment at issue. N.T., 11/9/2011, at 47. Therefore, she had the requisite authority to consent to a warrantless search of the premises. Moreover, Appellant does not challenge the voluntariness of Ms. Smith's consent; she clearly executed a written consent allowing police to conduct the search. Id. at 34–35. Thus, when police saw the shaving kit in Ms. Smith's bedroom, they were at a lawful vantage point.
Next, we must determine if the incriminating nature of the shaving kit was immediately apparent. “In determining whether the incriminating nature of an object is immediately apparent to the police officer, we look to the totality of the circumstances.” Commonwealth v. Turner, 982 A.2d 90, 92 (Pa.Super.2009) (citations, quotations, and brackets omitted). “Although courts have recognized that a police officer can never be certain that an object in plain view is incriminating, the officer's belief must be supported by probable cause.” Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa.Super.2013)citing Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043, 1049 (1995). An item can possess or display an incriminating character for purposes of the plain view doctrine even if it does not constitute contraband per se. See Brown, 23 A.3d at 557.
In this case, the police were aware of the following facts. Appellant demanded money from the victim while brandishing a handgun protruding from a leather, shaving kit bag. Majority Opinion, at 187. The victim witnessed Appellant take the bag into Ms. Smith's apartment complex. Id. Ms. Smith executed a written consent form allowing the police to search her apartment. The consent form contained a list of the objects that the police sought to recover, including: a “handgun, black in color, ammunition/rounds, ammunition, magazines, any other accessory such as a brown or black leather bag similar to a hygiene/shaving kit bag. ” N.T., 11/9/2011, at 48 (emphasis added). Moreover, Captain Paul Jewell testified as follows at the suppression hearing:
Q: After obtaining consent to search from M[s.] Smith, what do you do next, Captain?
A: I entered the apartment.
Q: And you just walk in?
A: Because of the nature of the call, a gun involved, we cleared the apartment to make sure no other persons were present and there were not.
Q: And what does that entail?
A: I ended up going to the back bedroom as part of the clearing. After I cleared it, I immediately saw a small bag, shaving bag, on the foot of the bed.
Q: And what was it—When you observed it, what did you immediately notice?
A: It fit the description of what the victim had told me.
N.T., 11/9/2011, at 48 (emphasis added).
The record confirms that Appellant used the shaving kit itself during the commission of a crime. The victim described the shaving kit in detail to police. It was clearly one of the targets of the consensual search of Ms. Smith's apartment. Separate and apart from its contents, the shaving kit itself linked Appellant to a gunpoint robbery and the police were aware of this fact. The shaving kit was in the open, lying on the foot of the bed, and not obscured. Appellant did nothing to preserve a privacy expectation in the exterior of his shaving kit and the facts show that it was the incriminating outward characteristics of Appellant's shaving kit, not the incriminating nature of its contents, which were immediately apparent to the officer who lawfully entered Ms. Smith's rear bedroom. Thus, Appellant exposed his shaving kit to the plain view of outsiders, including the victim and anyone whom Ms. Smith allowed into her bedroom. For these reasons, Appellant cannot assert a reasonable expectation of privacy in his shaving kit (i.e., the bag itself as opposed to its contents). It follows, then, that the seizure of the shaving kit (as a container) cannot offend the Fourth Amendment. See Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, concurring) (“objects, activities, or statements that [the defendant] exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited”); see also Horton, 496 U.S. at 141 n. 11, 110 S.Ct. 2301 (suggesting that where an incriminating item in plain view is a container, police may permissibly seize it because “even if the item is a container, its seizure does not compromise the interest in preserving the privacy of its contents because it may be opened pursuant to either a search warrant or one of the well-delineated exceptions to the warrant requirement.”); see also Commonwealth v. Copenhefer, 526 Pa. 555, 587 A.2d 1353, 1356 (1991) (“A defendant's attempt to secrete evidence of a crime is not synonymous with a legally cognizable expectation of privacy. A mere hope for secrecy is not a legally protected expectation.”), abrogated on other grounds by, Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069 (2001). Based upon all of the foregoing, I believe that the police permissibly seized Appellant's shaving kit.
My analysis cannot end here. The nature of the incriminating object in this case—i.e. a container—coupled with the fact that the officer effectuated a search of its contents compels me to proceed to Horton's third prong, which asks whether the police have a lawful right of access to the challenged evidence. As previously mentioned, Horton addresses the situation in which a defendant seeks suppression of the contents of a container seized under the plain view doctrine. In relevant part, the Court stated that “even if the item is a container, its seizure does not compromise the interest in preserving the privacy of its contents because it may be opened pursuant to either a search warrant or one of the well-delineated exceptions to the warrant requirement.” Horton, 496 U.S. at 141 n. 11, 110 S.Ct. 2301 (citations omitted). As this quote indicates, and as the majority has determined, Appellant retained an expectation of privacy in the contents of his shaving kit that could only be overcome if the officers obtained a warrant. Since this was not done, the search, as opposed to the seizure was constitutionally infirm.
Notwithstanding this determination, I believe that suppression is unwarranted under the present circumstances. As I have explained above, Appellant lacked an expectation of privacy in his shaving kit container. Thus, while a search of the contents of the shaving kit may have been improper, a seizure of the container was constitutionally justified. Moreover, at the moment the officer seized the container, there was ample evidence to establish probable cause in support of a warrant to search the contents of the shaving kit. Given the discrete constitutional transgression that occurred in this case, I would hold that the doctrine of inevitable discovery strongly supports affirmance of the trial court's suppression order.
“[N]o warrant to search any place or to seize any person or things shall issue without describing the item as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed by the affiant.” Pa. Const. Art. I, § 8. “Probable cause [ ] is a practical, non-technical concept which requires consideration of the totality of the circumstances.” Commonwealth v. Galvin, 603 Pa. 625, 985 A.2d 783, 796 (2009). The issuing authority “makes a practical, common-sense determination [ ], including the veracity and basis of knowledge of the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a certain locale.” Id.
In describing the doctrine of inevitable discovery, the United States Supreme Court has opined, “[e]xclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” Nix v. Williams, 467 U.S. 431, 446, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). This Court has concluded:
Pennsylvania courts recognize the inevitable discovery doctrine first described by the United States Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). That doctrine provides that evidence which would have been discovered was sufficiently purged of the original illegality to allow admission of the evidence. Implicit in this doctrine is the fact that the evidence would have been discovered despite the initial illegality. If the prosecution can establish by a preponderance of the evidence that the illegally obtained evidence ultimately or inevitably would have been discovered by lawful means, then the evidence is admissible. The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct. Thus, evidence that ultimately or inevitably would have been recovered by lawful means should not be suppressed despite the fact that its actual recovery was accomplished through illegal actions. Suppressing evidence in such cases, where it ultimately or inevitably would have lawfully been recovered, would reject logic, experience, and common sense.
This exception to the exclusionary rule has been invoked on numerous occasions by Pennsylvania appellate courts as a basis for admitting evidence that was, or was claimed to have been, illegally obtained by the police or other government investigators. See, e.g., Commonwealth v. Van Winkle, 880 A.2d 1280, 1285 (Pa.Super.2005) (holding that evidence obtained after officer exceeded permissible scope of weapons frisk was admissible because it fell within the inevitable discovery exception); Commonwealth v. Ingram, [814 A.2d 264, 270 (Pa.Super.2002) ] (deeming evidence obtained as a result of involuntary confession admissible because it inevitably would have been discovered); Commonwealth v. Miller, 555 Pa. 354, 724 A.2d 895, 900 n. 5 (1999) (citing Nix v. Williams, supra, and noting that even if the evidence found in the defendant's home had been illegally seized, it “would have been admissible because it inevitably would have been discovered”); Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 702 n. 11 (1998) (in claim decided under federal and state constitutions, holding that even if warrantless search of defendant's home had been improper, suppression not required because the evidence inevitably would have been discovered);
Commonwealth v. Garcia, 443 Pa.Super. 414, 661 A.2d 1388 (1995) (defendant not entitled to suppression of drugs in his pocket because they inevitably would have been discovered since police lawfully were permitted to search him incident to his arrest); Commonwealth v. Hoffman, [589 A.2d 737, 744 (Pa.Super.1991) ] (finding evidence recovered as a result of illegal search of defendant admissible because it would have been inevitably discovered); Commonwealth v. Speaks, 351 Pa.Super. 149, 505 A.2d 310 (1986) (evidence regarding discovery of marijuana in defendant's residence properly admitted under inevitable discovery rule).
Commonwealth v. Gonzalez, 979 A.2d 879, 890–891 (Pa.Super.2009) (some citations, all quotations, brackets, and ellipsis omitted). The Gonzalez Court determined that once police “had probable cause to arrest [Gonzalez] and had facts supporting issuance of a warrant to search [his] apartment, [... the police] inevitably would have discovered the other items of contraband in [Gonzalez's] room.” Id. at 891.
The present case presents a textbook set of circumstances in which a valid conviction is set aside based upon the exclusion of evidence that inevitably would have been discovered. Under the preponderance of the evidence standard, I would conclude that the undisputed facts prove that the evidence would have been inevitably discovered by police. Here, based upon the totality of the circumstances, the police arrested Appellant and had probable cause to obtain a search warrant for Ms. Smith's apartment, but did not because Ms. Smith voluntarily gave consent. The victim told the police that Appellant robbed him and provided them a description of Appellant, the weapon used in the commission of the crime, and the container in which Appellant placed his firearm. The victim also informed the police that he witnessed Appellant go into the apartment building where Ms. Smith lived and that he observed Appellant and Ms. Smith depart from the scene. N.T., 11/9/2011, at 8–9, 13. The police detained Appellant at a Sheetz gas station. Id. at 21. The police then transported the victim to the Sheetz where he positively identified Appellant as the robber.Id. The police arrested Appellant. Id.
Moreover, police were in the process of obtaining a warrant to search Ms. Smith's residence, and items relating to the gunpoint robbery committed by Appellant that may have been located therein including Appellant's shaving kit. N.T., 11/9/2011, at 35. No warrant was obtained, however, because Ms. Smith gave written permission for the officers to conduct a search. Id. Ms. Smith's written consent contained a list of the objects of the police search, including: a “handgun, black in color, ammunition/rounds, ammunition, magazines, any other accessory such as a brown or black leather bag similar to a hygiene/shaving kit bag.” Id. at 48. These descriptions were based upon what the victim told police. Id. Thus, at the time of the search, police knew the specific items they were looking for and there was a fair probability that evidence of a crime would have been found in Ms. Smith's apartment. Had the police applied for a warrant to search the contents of Appellant's shaving kit, they had overwhelming evidence to support probable cause. Finally, I must briefly address the learned majority's reliance on Commonwealth v. Berkheimer, 57 A.3d 171 (Pa.Super.2012) (en banc), as that case is wholly distinguishable from the instant matter. In Berkheimer, the search at issue was markedly different. Therein, police were attempting to execute a probation detainer for a man named Ryan Lecroy. Acting on an unverifiable tip, the police believed that Lecroy could be found at the Berkheimer's home. Police instituted a search at 11:30 p.m., under the dark of night, when the occupants appeared to be asleep. Police knocked on the door, but before anyone could answer it, pushed the door open and smelled burnt marijuana. The police entered the residence, wherein they saw contraband and a firearm inside. As my esteemed colleague acknowledges, the police then secured a warrant to search the residence based upon the items they observed during the illegal entry into the home. Majority Opinion, at 194.
There is no concern in this case that we are dealing with the possibility that the police “got the wrong man.” The victim positively identified Appellant as his armed robber. This identification rested upon unshakable indicia of reliability: Appellant and the victim knew each other previously since the two shared a prison cell together. Furthermore, as even the majority acknowledges, Appellant admitted to possessing marijuana that he stored in the same shaving kit bag that housed the firearm which he now seeks to suppress. See Majority Opinion at 195, n. 12.
In Berkheimer, this Court determined that “the independent source rule precludes the issuance of a search warrant if the law enforcement officers premised their application for the warrant, even in part, on information they obtained during an unlawful entry of the premises to be searched.” Berkheimer, 57 A.3d at 184, citing Murray v. United States, 487 U.S. 533, 534–535, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). We stated that “[l]aw enforcement may not act willfully to avail itself of unlawful conduct of the expectation that the more relaxed measure of inevitable discovery espoused in the Fourth Amendment jurisprudence will somehow vindicate the right to privacy enshrined in Article I, Section 8.” Berkheimer, 57 A.3d at 188. As the United States Supreme Court made clear, a resulting search is infirm when “the prosecution could not demonstrate that the agents would have sought a warrant had they not first entered” the property at issue. Id., citing Murray, 487 U.S. at 543, 108 S.Ct. 2529 (emphasis supplied). Ultimately, in Berkheimer, we determined that “the record in [that] case identifi[ed] no source whatsoever unsullied by the taint of the illegality.” Berkheimer, 57 A.3d at 190 (original emphasis omitted). Thus, in sum, Berkheimer stands for the proposition that police cannot conduct an illegal search first and then use the information gained from that search to ratify their actions under the guise of inevitable discovery.
Here, based on the facts as presented to the suppression court, I have no difficulty finding that not only could police have obtained a search warrant, but they certainly would have. This is not the same situation we were confronted with in Berkheimer. There, police used information gleaned from the illegal entry into and search of the Berkheimer's home to procure a search warrant for wholly unrelated crimes that they were not originally investigating. In this case, unlike in Berkheimer, police had probable cause to believe that a firearm would be found at Ms. Smith's apartment at the time of the search. Moreover, as noted multiple times previously, police were in the process of applying for a search warrant based upon the victim's statements to them. It was only after Ms. Smith voluntarily consented to a search of her apartment that the police suspended the search warrant application process. Under the facts of this case, had the police applied for a search warrant, based upon the information known to them before entering Ms. Smith's apartment, they unquestionably would have succeeded in obtaining a warrant to search the shaving kit they lawfully seized.
In sum, I believe that the facts of this case do not warrant suppression. The investigating officer properly seized Appellant's shaving kit under the plain view doctrine. As of that moment, the police had ample grounds to establish probable cause for a warrant to search the contents of Appellant's shaving kit. Thus, while the warrantless search that ensued may have been constitutionally infirm, I would hold that the contents of Appellant's shaving kit would inevitably have been discovered. Hence, I would affirm the denial of suppression and affirm Appellant's judgment of sentence. Accordingly, I respectfully note my dissent.
This Court may affirm the trial court's decision on any basis. Gonzalez, 979 A.2d at 889, n. 5. I admonish the Commonwealth for electing not to file a brief in this matter, despite a grant by this Court for an extension of time to do so. This difficult matter was made even more challenging without the benefit of the Commonwealth's advocacy.
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