Com. v. Perel, D. ( 2014 )

J-S74025-13
2014 Pa. Super. 283
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DELANO E. PEREL,
Appellant No. 704 WDA 2013
Appeal from the Judgment of Sentence of March 27, 2013
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000618-2011
BEFORE: PANELLA, OLSON AND WECHT, JJ
DISSENTING OPINION BY OLSON, J.: FILED DECEMBER 23, 2014
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
J-S74025-13
of his shaving kit.1 Majority Opinion, at * 6-8. Next, the majority concludes
that society would recognize Appellant’s privacy expectation in the contents
of his shaving kit as reasonable. Majority Opinion, at * 7-10. 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 * 11. 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
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1
While the majority claims that Appellant “did not inform [Ms.] Smith of the
contents of the bag[,]” Majority Opinion, at * 6, 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.
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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 * 13-15.
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 kit2 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
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2
I refer here to the outward appearance of the shaving kit itself, not to its
contents.
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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.
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, 988 A.2d 649, 654 (Pa. 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, at * 3 (citation omitted). These constitutional provisions
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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 *3. “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 (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
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the expectation of privacy under the circumstances would
be unreasonable.
Katz, 389 U.S. at 361 (Harlan, concurring).
The United States Supreme Court decision in Horton v. California,
496 U.S. 128 (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 (citations and footnotes omitted).
Relying upon Horton, this Court has described the plain view doctrine
as follows:
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[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 (1971), as
modified by Horton v. California, 496 U.S. 128 (1990),
and it was adopted by our Supreme Court in
Commonwealth v. McCullum, 602 A.2d 313 (Pa. 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.
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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 exception3 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.
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:
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3
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, 91 A.3d 102 (Pa. 2014) (plurality).
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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, 836 A.2d 893, 900 (Pa. 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
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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, 662 A.2d 1043, 1049
(Pa. 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 577.
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 * 2. 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.
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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
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the shaving kit (as a container) cannot offend the Fourth Amendment. See
Katz, 389 U.S. at 361 (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 (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, 587 A.2d 1353, 1356 (Pa. 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, 777 A.2d 1069 (Pa. 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
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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
(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 cause4 in support of a warrant to search the
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4
“[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, 985 A.2d 783, 796 (Pa. 2009). The issuing
authority “makes a practical, common-sense determination [], including the
veracity and basis of knowledge of the persons supplying hearsay
(Footnote Continued Next Page)
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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.
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 (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 (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.
_______________________
(Footnote Continued)
information, there is a fair probability that contraband or evidence of a crime
will be found in a certain locale.” Id.
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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,
724 A.2d 895, 900 n. 5 (Pa. 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, 720 A.2d 693,
702 n. 11 (Pa. 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, 661 A.2d 1388
(Pa. 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, 505 A.2d 310
(Pa. Super. 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]
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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
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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.5
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
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5
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 *22, n.12.
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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 *18.
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 (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
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a warrant had they not first entered” the property at issue. Id., citing
Murray, 487 U.S. at 543 (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
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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.6 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.
____________________________________________
6
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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