Commonwealth v. Melendez

OPINION OF THE COURT

FLAHERTY, Justice.

Patricia Melendez was convicted by a jury of possession of cocaine with intent to deliver and possession of drug paraphernalia in violation of the Controlled Substance, Drug, Device and Cosmetic Act,¹ criminal conspiracy,² and violation of the Uniform Firearms Act.³ She was sentenced to eleven and one half years to twenty-three years in prison. On appeal, Superi- or Court affirmed the convictions, with one judge dissenting. We granted allocatur in order to address Melendez’s claims that police conducted improper searches and seizures of inculpatory evidence which should have been suppressed at trial.

On November 9, 1990 Philadelphia police began a surveillance of 5155 Pennway Street. This was the culmination of a three-week investigation into possible drug activity at this address. Police at the scene were in communication with an officer at another location who was typing up an application for a search warrant of the premises. About an hour after the surveillance began, Melendez left the house on Pennway Street, got in an automobile, and drove away. Police then stopped her, removed her from the car, and searched her purse, where they found a .25 caliber handgun, a large amount of cash, and what police describe as a drug tally sales sheet.

Police had observed no criminal activity on the part of Melendez, but stopped and searched her because she was a suspect in a felony investigation. Police then transported Melendez back to her house, where they used her keys to gain entrance. Upon entering the house, police observed Melendez’s co-defendant holding a bag of cocaine. Police then secured the house and its occupants and waited for communication as to whether or not the search warrant had been approved. For approximately an hour, police waited at the scene with both occupants of the dwelling, but did not conduct a search. Finally, the warrant arrived and they searched the house, finding drugs, cash and other evidence which was used to obtain the convictions.

Although Melendez raises a number of issues, because of our disposition of the case, we limit our discussion to the questions of whether under the United States and Pennsylvania constitutions (1) Melendez was improperly stopped and searched, requiring suppression of any evidence seized as a result of the search and (2) whether the warrantless entry of Melendez’s home was illegal, requiring the suppression of evidence seized from the home. We answer both questions in the affirmative.

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.

Art. I, Sec. 8. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const.Amend. 4. Under both federal and state provisions, people are to be secure in their persons against “unreasonable searches and seizures.” The issue in the first instance is whether Melendez was unreasonably stopped and searched when she attempted to drive away from her residence.

In Commonwealth v. Rodriquez, 532 Pa. 62, 71, 614 A.2d 1378, 1382 (1992), this court stated:

In accordance with the protections afforded our citizens under Article I, Section 8, we have recognized only two instances where police may “seize” an individual^] both require an appropriate showing of antecedent justification: first, an arrest based upon probable cause, Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987); second, a ‘stop and frisk’ based upon reasonable suspicion, Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).

In sum, there are two circumstances in which warrantless seizures of a person are constitutionally permissible. The first is where police have probable cause to believe, that a crime is being or is about to be committed. The second is that a limited seizure may be effected where there is a reasonable police belief that criminal activity is afoot. Hicks, 434 Pa. at 160, 253 A.2d at 279, interpreting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In this case, Melendez was not engaged in any activity at the time she was stopped which would cause a person of reasonable caution to believe that she was then engaged in criminal conduct.⁴ The brief for the Commonwealth concedes that detectives stopped Melendez because “if the suspect was at large when the impending search warrant was executed she might never be apprehended.” The fact that Melendez might avoid arrest, however, does not constitute probable cause to arrest her, for at that point, there was no probable cause to believe that Melendez was committing or about to commit a crime.

The remaining possibility for a legal seizure of the person of Melendez is that the stop constituted a stop and frisk under the Terry-Hicks line of cases. However, unless police have “specific and articulable facts” which lead them to suspect criminal activity, Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906, they may not stop and search any person without a warrant. Since the Commonwealth offers no “specific and articulable facts” here, there was no justification for even the limited intrusion of a Terry stop.⁵

In an apparent attempt to avoid this conclusion, the trial court stated that “police stopped Ms. Melendez for investigation____” However, the “investigation” rationale does not supply the articulable-basis-for-suspicion requirement of Hicks and Terry. No person may be stopped for “investigation” in the absence of an articulable reason to suspect criminal activity, and the record contains no indication that police had any basis to believe that Melendez was engaged in any criminal activity at the time of the stop. Instead, police had only the suspicion that Melendez was involved in illegal drug sales at a time and location wholly separate from the place she was stopped. Terry stops, however, are designed to address immediate suspicions of current illegal conduct.⁶ Concerns that Melendez may have been engaged in illegal activity in her home were properly addressed by the application for a search warrant and provide no basis for a Terry stop.⁷

Superior Court justified the warrantless stop and search in this case by reference to “exigent circumstances.” Making reference to Commonwealth v. Peterson, 408 Pa.Super. 22, 596 A.2d 172 (1991), Superior Court stated the applicable law as follows:

It is well-settled that exigent circumstances excusing the warrant requirement arise where the need for prompt police action is imperative____ Whether exigent circumstances exist depends on an examination of all of the surrounding circumstances in a particular case.... [T]he inherent necessities of the situation at the time must be scrutinized.

Slip Op. at 10. Superior Court then proceeded to determine that the present case involved exigent circumstances:

failure to halt the vehicle of appellant and detain her would have set the stage for her to return to the premises during the execution of the search warrant, observe the police activity at the premises, and been thereby impelled to flight____ Similar exigent circumstances justified the warrantless entry of the residence of appellant since the failure of appellant to arrive at her destination at a particular time or within a particular period could well have set in motion, by pre-arrangement among the conspirators or by happenstance, circumstances which her co-defendant would have viewed as so untoward as to necessitate destruction or removal of contraband from the scene.

Slip Op. at 11. Although Superior Court finds the exigencies of this case “quite compelling,” we disagree.

Our disagreement with Superior Court’s determination that exigent circumstances justified the search is based on our view that there was no “imperative” need for police action in this case. There is no evidence of record that any of the “untoward” eventualities Superior Court mentions actually existed, and if the police created a danger that their surveillance might be discovered because they stopped Melendez’s car, they can hardly be allowed to rely on that to justify a warrantless intrusion. Had the police simply waited for the search warrant, they could have searched the dwélling and avoided the problems of the present case. Had contraband been found during the search, police then could have arrested Melendez on the basis of this evidence. There were no exigent circumstances.

In sum, the stop, and therefore the search, were illegal, for the stop was grounded neither on probable cause nor the less stringent requirements of Terry, and the warrant requirement was not obviated by the existence of exigent circumstances. It is our conclusion, therefore, that the items seized and introduced into evidence must be suppressed under Art. I, Sec. 8 of the Pennsylvania Constitution.

Next we address the claim that the search of the premises was illegal. Superior Court justified the search because Melendez consented to return with the police to her home and to their using her keys to open the door and enter. Even if Melendez had not given her consent, according to Superior Court, “exigent circumstances” were such that the police would have been authorized to enter anyway. Moreover, even if there were no exigent circumstances, the evidence seized at the residence would have been admissible under the “inevitable discovery rule.”

We address these assertions seriatim. After police stopped Melendez, they told her they were getting a search warrant for her house and asked her to go there with them. There is no evidence of record that she consented to accompany police or to have them enter her house.

In Commonwealth v. Davenport, this court stated:

In Bumper v. North Carolina, 391 U.S. 543, 548-9 [88 S.Ct. 1788, 1791-2] 20 L.Ed.2d 797, 802 (1968), the Supreme Court of the United States held that “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”

453 Pa. 235, 241-42, 308 A.2d 85, 88-89 (1973). In this case, Melendez was not informed of her right to refuse to accompany police or her right to refuse their entry into her house. Clearly, she waived nothing, and she certainly did not freely and voluntarily consent to the police entry into her house. Superior Court’s determination of consent is in error.⁸

Next, Superior Court asserts the presence of exigent circumstances. There is some dispute as to where police stopped Melendez. The trial court found that it was several blocks from her home and the Commonwealth asserts that it was in her driveway. Our view is that it does not matter where police stopped her. If the concern was that police activity might have been witnessed by a person remaining in the house who might begin to destroy evidence, such a possibility is of no legal consequence, for police may not create their own exigencies, which they then use as justification for exclusion from normal warrant requirements.

Finally, Superior Court held that even if circumstances were not exigent, the evidence seized at the house would have been admissible under the “inevitable discovery” rule. In Commonwealth v. Mason, 535 Pa. 560, 565, 637 A.2d 251, 253 (1993), we discussed both the inevitable discovery rule and its relation to the Pennsylvania Constitution. The inevitable discovery rule, sometimes referred to as the “independent source rule,” is that if the prosecution can demonstrate that the evidence in question was procured from an independent origin, such evidence is admissible.

In Mason police officers were conducting a surveillance of an apartment as a suspected site of illegal drug sales. They arranged for an undercover officer to purchase cocaine from an intermediary, who purchased his cocaine from persons in the apartment. After the intermediary delivered the cocaine to a police informant, he was arrested several blocks from the apartment. The intermediary told the police that occupants of the apartment sold him cocaine and were conducting other drug transactions in the apartment. Police then applied for a search warrant based on this information and their surveillance, but before an officer returned with the warrant, officers who remained near the apartment battered down the door. They were concerned that word of the intermediary’s arrest might be communicated to occupants of the apartment, who would then destroy evidence of criminal activity.

We rejected the police claim that exigent circumstances justified the warrantless entry. The asserted exigency was that evidence of criminal activity might be destroyed if police were not permitted to enter without a warrant and secure the premises until they learned whether a warrant had been issued. Our view, however, was that mere speculation that evidence may be destroyed because suspects may learn of police activity is inadequate to justify a warrantless entry, and in any event, police may not bootstrap themselves into exigencies by their own conduct.

In Mason we held that “where police seize evidence in the absence of a warrant or exigent circumstances by forcibly entering a dwelling place, their act constitutes a violation of Article I, Section 8 of the Pennsylvania Constitution____” 535 Pa. at 571, 637 A.2d at 257. We acknowledged that the independent source rule had been applied in Pennsylvania, but we emphasized that its application has been limited. Further, we observed that our past cases have made it clear that we place a greater importance on privacy under the Pennsylvania Constitution than have recent federal cases under the United States Constitution, and we noted that the facts in Mason were importantly different from the facts in previous independent source cases in that they involved the invasion of a dwelling place.

Our emphasis on the importance of privacy in Pennsylvania jurisprudence and the fact that the illegal police invasion was of a home left open the question of whether Mason was to be understood as requiring an absolute exclusion of evidence which was illegally seized in warrantless police intrusions of a home, or whether the illegally seized evidence might be salvaged through exceptions to the warrant requirement such as the independent source rule.

Today we resolve that question and clarify Mason by holding that such illegally seized evidence may be admitted into evidence through exceptions to the warrant requirement such as the independent source rule. However, although the independent source rule would allow for the admission of illegally seized evidence, it has no application in this case.

Mr. Justice Cappy, concurring in Mason, voiced a concern that unless the independent source doctrine was more firmly limited than we had done in Mason, police officers would be likely to believe that if they first requested a warrant, they could then conduct an illegal entry and escape suppression of the evidence which they would later seize pursuant to the warrant. It would appear that his concern was well founded, and we hereby adopt the limitation of the independent source rule which Mr. Justice Cappy proposed in Mason:

[Application of the “independent source doctrine” is proper only in the very limited circumstances where the “independent source” is truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered.

535 Pa. at 573, 637 A.2d at 257-58 (emphasis in original). Applying this rule to the present case, there is no source of the evidence in question that is “truly independent” of either the tainted evidence or the police who engaged in the misconduct. The evidence must, therefore, be suppressed.

The Pennsylvania Constitution does not allow police intrusions exemplified by this case and Mason. Government agents may not enter private dwellings through the use of battering rams as in Mason, or by effecting illegal stops and seizures as in this case, and secure the premises by detaining those who occupy the premises while police wait to learn whether their application for a warrant has been approved. It is difficult to imagine practices more inimical to the fundamental idea that no person shall be subject to unreasonable searches and seizures.

Judgment of Superior Court is reversed.

CAPPY, J., files a concurring opinion which is joined by ZAPPALA, J.

CASTILLE, J., files a dissenting opinion.

1 . 35Pa.C.S. § 780-113.

2 . 18 Pa.C.S. § 903.

3 . 18 Pa.C.S. §§ 6106 and 6108.

4 . Probable cause has been described as occurring where the facts and circumstances within the officer’s knowledge and of which he has trustworthy information are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881-82, 18 L.Ed.2d 1040, 1050 (1967).

5 . If, on the other hand, police have articulable and reasonable suspicion of criminal activity, they may conduct a brief investigatory stop for the purpose of learning what they can, and during the course of this stop, should they be reasonably concerned for their safety, they may conduct a pat-down of the suspect’s outer garments for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is always uncertain what may be learned from a Terry stop, however, for there is no requirement that the person stopped answer any questions which are put to him, and in that event, the police are without authority to do more than make their presence known and, if appropriate, conduct a surveillance of the suspected activity.

6 . The Terry situation concerns "necessarily swift action predicated upon the on-the-spot observations of the officer on the beat....” Terry v. Ohio, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905.

7 . In Commonwealth v. Rodriquez, 532 Pa. 62, 614 A.2d 1378 (1992) and in Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), this court rejected attempts by the Commonwealth to erode the boundaries of the Terry exception to probable cause requirements so as to permit “investigation” stops or police seizures which are intended to "freeze” the situation.

8 . The Commonwealth attempts to meet its burden of proving consent to enter the house by arguing that "there is no evidence that [Melendez] would not have been free to go if she had opted to decline [the police] request to return to the house. The record demonstrates only that defendant was asked to do something under non-threatening circumstances, and she agreed to do it." Brief at 15. (emphasis in original.)

However, the Commonwealth had earlier conceded that Melendez was stopped because otherwise she might never be apprehended. Brief at 4. If she was stopped in order to prevent escape, she was not free to go, and if she was not free to go, absent an express consent, her conduct can only be regarded as acquiescence. There is nothing of record to indicate express consent. It is our view, therefore, that the Commonwealth has not met its burden of demonstrating that Melendez consented rather than merely acquiesced.