DocketNumber: 847
Judges: Rowley, Olszewski, Popovich
Filed Date: 4/4/1985
Status: Precedential
Modified Date: 10/19/2024
This is an appeal from a lower court order granting a motion to suppress. The Commonwealth contends that the warrantless search of appellee, Willie Kendrick, was lawful and, therefore, the lower court erred in suppressing the evidence. We agree and reverse the lower court’s suppression order.
The facts of this case may be quickly summarized. On January 11, 1983, narcotics detectives received information from an informant regarding the sale of heroin at the residence of Buzzy (Craig Owens) and Mary Emma. The detectives used this information, along with information gathered from their own surveillance of the house, to secure a search warrant for the residence. The warrant was issued and executed on January 14, 1983.
Arriving at the residence, the detectives knocked at the door but received no answer. The detectives knocked
After securing the premises, the detectives directed the four adults from the bedroom into the living room and told them to lie down on the floor. The police detectives then proceeded to search the four for weapons. As one of the detectives approached appellee to conduct the weapons search, he noticed something black in appellee’s left hand. Although appellee attempted to conceal the object by tucking his hand under his body, the item was seized and the weapons search conducted. The object in appellee’s hand
On May 16, 1983, appellee moved for suppression of the film container and its contents claiming that the items were the product of an unlawful search and seizure.
The Fourth Amendment to the United States Constitution protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” The Amendment protects two different interests of the citizen — the interest in retaining the possession of property and the interest in maintaining personal privacy. A seizure threatens the former, a search the latter. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring at 1546). The instant case involves both a seizure and a search — the
The Commonwealth maintains that the seizure of the vial was lawful because the vial was in the “plain view” of the officer.
Decisions by this Court since Coolidge indicate that the use of the phrase “immediately apparent” was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminating character of the evidence is necessary for an application of the “plain view” doctrine.
Id. 103 S.Ct. at 1542.
The Brown Court, rejected the “immediately apparent” language of Coolidge, and reaffirmed the rule set
Applying these principles, we conclude that the detective lawfully seized the film vial. At the suppression hearing, the court made an express finding that the circumstances surrounding the execution of the search warrant justified a protective weapons search of appellee. Judge Ross stated:
There’s no doubt in my mind under the circumstances under which these police went in there with a shotgun being there, they have the absolute right to make a search of anybody in there to determine whether there were any weapons on them.
Since the detective was conducting a lawful Terry frisk when he first saw the film vial, we conclude that the “initial intrusion” was lawful. See Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984); Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983). Turning now to the second prong of our Coolidge-Brown analysis, we conclude that the discovery of the film vial was inadvertent. Although the detectives were no doubt aware of the possibility of encountering an in-progress drug sale, there is no indication in the record that they had anything beyond a general expectation. Texas v. Brown, supra 103 S.Ct. at 1543. Our final inquiry is whether the detectives had probable cause to associate the observed object with criminal activity.
Probable cause is a flexible, common-sense standard. As the Supreme Court in Texas v. Brown, supra commented 103 S.Ct. at 1543:
*571 It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288 [69 L.Ed. 543] (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311 [93 L.Ed. 1879] (1949).
Moreover, when examining a particular situation to determine if probable cause exists, a court must consider all factors and not concentrate on any individual element. Furthermore, it is important to focus on the circumstances as seen through the eyes of a trained officer and not to view the situation as an average citizen might. Finally, probable cause does not deal in certainties; rather, a court is faced with the factual and practical considerations of everyday life which affect how reasonable and prudent men act. See Commonwealth v. Trenge, 305 Pa.Super. 386, 395, 451 A.2d 701, 705 (1982); Commonwealth v. Tolbert, 235 Pa.Super. 227, 230, 341 A.2d 198, 200 (1975).
In the instant case, evidence at the suppression hearing revealed a valid search warrant authorizing a narcotics search of the residence. When the detectives attempted to execute the warrant, they were immediately confronted by a gunman. Under these circumstances, it was not unreasonable for the detectives to conclude either that criminal activity was currently taking place, or had taken place just prior to their arrival. Focusing now on appellee, the evidence showed that appellee was present in a house in which the detectives suspected drug trafficking activities. Moreover, when the detectives arrived at the residence to execute the warrant, appellee attempted to avoid police detection by retreating into a bedroom. Failing to avoid detection and once under police custody, appellee then attempted to hide the film vial under his body. In light of the
Turning now to the issue of whether the search of the vial, revealing its contents, was lawful. The Commonwealth contends that the detectives had probable cause to open the film vial and examine its contents. We agree.
This Court concludes that under the circumstances of this case, discussed supra, it was not unreasonable for the detectives to open the vial. As this Court stated in Commonwealth v. Spriggs, 224 Pa.Super. 76, 302 A.2d 442 (1973), a similar case involving a film vial:
There is no logical limitation upon the right of police discovering a container upon the appellant that may contain a weapon or contraband to search the container’s contents and seize such evidence____
This Court believes that a film vial, a common package for carrying narcotics, is more closely akin to those rare single-purpose containers which “by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Arkansas v. Sanders, 442 U.S. 753, 764-765 n. 13, 99 S.Ct. 2586, 2593-2594 n. 13, 61 L.Ed.2d 235 (1979). Admittedly, a film container has other uses and therefore is not purely a “single-purpose” container. However, given the circumstances of this case, we believe that the trained narcotics detective’s view of the container was tantamount to a view of the heroin itself. See Texas v. Brown, supra (Stevens, J., concurring at 1547). Therefore, we hold that the search of the film vial was lawful.
Since we have concluded that both the seizure of the film vial and the search of its contents were lawful, it follows then that the lower court erred in suppressing the evidence. Accordingly, we reverse the order of the lower court and remand the case for trial.
. The probable cause section of the search warrant stated:
We the Affiants received information from a confidential and reliable informant in person during the evening hours of 1-11-83. This informant has proven true and correct in the past with information leading to the arrests and convictions of John Hejnosz and Laura Borland both for possession of Heroin. This informant stated that he/she was in the above named residence during the week of 1-3-83 and had observed the above named subjects in the possession of a quantity of Heroin which was packaged in aluminum foil packets. At this time this informant accompanied these Affiants to the above named residence and pointed this residence out to these Affiants. These Affiants observed the residence from 8:00 p.m. thru 9:15 p.m. and observed 12 individuals all black males and females arrive at the residence at different times in pairs and alone. Each of these individuals entered the residence and remained for several minutes then exiting the residence and leaving the area. On 1—12—83 your Affiants arrived at the above named residence at 8:15 p.m. and remained until 9:20 p.m. During this period 4 different black*567 males were observed arriving separately at said residence, entering same, remaining for several minutes and then leaving the area. On 1-13-83 during the morning hours we the Affiants received information by telephone at our office from the same informant who stated that he/she was within the above named residence within the past 36 hours and during this time did observe the above named individuals in the possession of a quantity of heroin packaged in aluminum foil packets and in capsules. This informant states that this substance was being offered for sale and while at the residence did observe the individuals sell a quantity of this substance to an unknown black male who came to the residence for an unknown amount of cash. This informant states that this substance was still present upon his/her leaving the residence. This informant knows heroin from seeing it numerous times in the past and from being an admitted user of drugs. Based upon the past reliability of the informant, the information supplied by the informant and the experience of your Affiants as narcotics detectives we hereby request that a search warrant for the above named address be issued.
. Appellee’s motion to suppress stated in part.
6. That the arrest and search of the defendant was illegal, invalid and unconstitutional for the following reasons:
(a) The arrest was made without warrant and without probable cause.
(b) The search of the Defendant was not incident to a lawful arrest.
(c) The search warrant was not properly executed.
(d) That the arrest and search of the Defendant was otherwise illegal under all the circumstances.
. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. Given the nature of the offenses and the fact that the lower court’s order bars admission of all contraband seized pursuant to the contested search, the Commonwealth is left with no evidence on which to proceed to trial. Therefore, the Commonwealth’s appellate rights have vested in the instant case. Commonwealth v. Evans, 314 Pa.Super. 16, 460 A.2d 350 (1983); Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983).
. The Commonwealth further maintains that the seizure may be justified as either within the scope of a Terry frisk or as incident to a lawful arrest. Since we find that the item seized was within the "plain view” of the detective, it is not necessary to reach these issues.
. See U.S. v. Jackson, 649 F.2d 967 (3rd Cir.1981) cert. denied Bailey v. U.S., 454 U.S. 871, 102 S.Ct. 341, 70 L.Ed.2d 176. (Police who entered bar with a search warrant for the bar and arrest warrants for five persons on drug related charges, had probable cause to arrest and search defendant, who was not named in either the arrest or search warrant, when they observed defendant attempt to hide capsules of the type commonly containing heroin in a freezer); Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982) (officers observed appellant and companion emerge from an alley in a high crime area at night, leaf through an object, and run at first sight of police. These facts plus permissible inferences from them would lead a man of reasonable caution to suspect criminal activity was afoot.)
Cf. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (not only was probable cause to search Ybarra absent at the time the warrant was issued, it was still absent when the police executed the warrant. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband and said nothing of a suspicious nature to the police officers); Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979) (when officers had neither been informed of nor observed suspicious conduct or circumstances that would give rise to an inference of possession of a controlled substance, they lacked probable cause to seize from plain view amber prescription vial which contained several foil packets of hashish.)