Commonwealth v. Lindsay

HESTER, Judge:

The Commonwealth appeals from the order entered in the Court of Common Pleas of Philadelphia County on June 7, 1990, which suppressed certain evidence seized from appellee, Wanda Lindsay. For the reasons set forth below, we reverse and remand for further proceedings.

The procedural history of the case may be summarized as follows. On September 15, 1989, two days after Officer Karen Heywood of the Philadelphia Police Department purchased a quantity of cocaine from an unidentified male, several officers, armed with a warrant, searched the North Gratz Street residence from which the male had obtained the drugs. During the course of the search, Corporal Charles Gurski seized from appellee a bag which contained both packages and vials of cocaine. Accordingly, appellee was arrested and charged with possession, possession with intent to deliver, and conspiracy.

Several months after her arrest, appellee asserted that neither the warrant nor the circumstances then existing supported a search of her person pursuant to the fourth amendment or its analogous state provision, article 1, section 8 of the Pennsylvania Constitution, and moved to suppress the cocaine. On June 7, 1990, the trial court, which previously had conducted an evidentiary hearing on the matter, concluded that the seizure of the cocaine had been improper and entered the contested order. This timely appeal followed.

Preliminarily, we note that the Commonwealth, in conformity with the dictates of Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), has certified that the trial court’s order terminates or substantially handicaps its prosecution of appellee. Accordingly, we conclude that the present appeal is properly before us, see Commonwealth v. Reviera, 387 Pa.Super. 196, 563 A.2d 1252 (1989), allocatur granted, 525 Pa. 598, 575 A.2d 564 (1990), and address the merits.

Our standard for reviewing the suppression of evidence is well-established. In Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990), we discussed that standard and stated:

Where the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Robinson, 518 Pa. 156, 159-160, 541 A.2d 1387, 1389 (1988), citing, Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983). If the evidence supports the court’s factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986). It is for the trier of fact, rather than the reviewing court, to determine credibility. Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985).

Keeping these principles in mind, we must examine the facts elicited during the course of the suppression hearing and, thereafter, determine whether the law supports the decision of the trial judge. An examination of the record reveals the following facts.

On the evening of September 13, 1989, Officer Heywood, while conducting an undercover investigation relative to the possible sale of narcotics, approached a North Gratz Street residence. When she reached the front of that building, the officer came into contact with an unnamed male who asked her if she would like to purchase some cocaine. After Officer Heywood replied in the affirmative and gave him twenty-five dollars, the man entered the residence. Several minutes later, he returned with five plastic packets of cocaine.

Following the completion of the drug transaction, Officer Heywood obtained a warrant to search both the residence and all persons therein engaged in either the destruction or concealment of evidence. Subsequently, after the male was arrested on a nearby street corner, several officers entered the house where they observed appellee attempting to conceal a brown paper bag between herself and the baby that she held. One of those officers, Corporal Gurski, removed the bag from her possession and discovered vials and packets of cocaine. Accordingly, he placed appellee under arrest.

We first consider whether the search of appellee’s person is within the ambit of the warrant. In this regard, we note that the warrant, rather than permitting, a search of all persons in the residence, merely authorized searches of persons then engaged in the concealment or destruction of evidence, conduct which constitutes the crime of hindering apprehension or prosecution. See 18 Pa.C.S. § 5105(a)(8). Consequently, it is clear that the analysis set forth in Commonwealth v. Graciani, 381 Pa.Super. 626, 554 A.2d 560 (1989), and Commonwealth v. Heidelberg, 369 Pa.Super. 398, 535 A.2d 611 (1987), affirmed by an equally divided Court, 522 Pa. 138, 560 A.2d 140 (1989), which related solely to the propriety of “all persons present warrants,” is inapplicable to the present factual situation. Furthermore, as our research has failed to reveal any cases by either the United States Supreme Court or the various courts of this Commonwealth regarding the question of the propriety of warrants that authorize searches of all persons then engaged in specified criminal activity, we will consider other relevant authority.

In his treatise on the fourth amendment, Professor Wayne LaFave discussed the distinction between “all persons present warrants” and warrants permitting the search of all persons engaged in criminal behavior. 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 230-33 (2d ed.1987). In concluding that the latter warrants may not support a personal search, he noted that by their terms, they leave to the executing officers the problem of selecting the persons to be searched on the basis of information that they then might have as opposed to information the magistrate has when the warrant is issued. Thus, searches premised upon those warrants alone cannot be supported since the warrants were based upon a probable cause determination made prior to the actual existence of probable cause. Since we find Professor LaFave’s suecinct analysis of the issue both logical and persuasive, we adopt it as our own. Turning to the warrant in question, we conclude that under the fourth amendment, it could not support the search of appellee’s person. Furthermore, as it is clear that the minimum guarantees provided by the fourth amendment are equally applicable to our analogous state constitutional provision, Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990); see also Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), the warrant also will not support the search under article 1, section 8.

Having determined that the warrant was insufficient to support the search of appellee, we address the question of whether appellee’s search may be upheld on the basis of probable cause.¹ It long has been clear that warrantless searches are generally deemed unreasonable for constitutional purposes. See Commonwealth v. Bruner, 388 Pa.Super. 82, 564 A.2d 1277 (1989). However, if the contested search is supported by probable cause, see Commonwealth v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616 (1983), and fits within any of the various well-defined exceptions to the warrant requirement, see Commonwealth v. McBride, 391 Pa.Super. 113, 570 A.2d 539 (1990), it will be upheld. Accordingly, we initially must determine whether the search was supported by probable cause.

Probable cause may be defined as facts or circumstances that would warrant a person of reasonable caution in believing that a criminal offense has been or is being committed. See Commonwealth v. Reviera, supra. In determining the existence of probable cause, a court must consider all factors and not concentrate on any individual element. Commonwealth v. Bailey, 376 Pa.Super. 291, 545 A.2d 942 (1988). Furthermore, the court should focus on the circumstances as seen through the eyes of a trained officer. Id. Finally, we note that analysis of the question of the existence of probable cause does not concern certainties, but rather practical considerations of everyday life which affect how reasonable and prudent persons act. Id.

In the present case, our review of the facts leads us to conclude that Corporal Gurski clearly had probable cause to believe that appellee, just prior to the search, was committing a crime. As Corporal Gurski and his fellow officers entered the North Gratz Street residence, appellee attempted to place a brown paper bag between herself and the baby she held. Since the officers entered the residence to search for drugs, drugs recently had been stored in the house, and drugs easily can be hidden in such a bag, one reasonably could have concluded that appellee was in possession of drugs and also was attempting to conceal this evidence from the police. As we indicated earlier, the concealment of evidence is conduct that constitutes the crime of hindering apprehension or prosecution. We therefore conclude that the officers had probable cause to believe that appellee was committing a crime.

We next consider whether the search in question falls within any of the exceptions to the warrant requirement. In this regard, we note that we long have held that a warrantless search will be excused where the need for prompt police action is imperative due to the possibility that the evidence sought to be preserved will either be destroyed or secreted from investigation. Commonwealth v. Ehrsam, 855 Pa.Super. 40, 512 A.2d 1199 (1986). Since the officers were searching the residence in an effort to uncover drugs, which easily are concealed and destroyed, and they had probable cause to believe that appellee was attempting to secret some on her person, it is clear that the need for prompt action was imperative to preserve the sought-after evidence. Consequently, we find the search of both appellee’s person and the bag was proper. Thus, the trial court’s decision to suppress the evidence uncovered must be reversed.

Order reversed and case remanded for further proceedings. Jurisdiction relinquished.

JOHNSON, J., files a concurring and dissenting opinion.

1 . We note that appellee originally raised this issue in the trial court. She contended that her search was not supported by probable cause. Notes of Testimony ("N.T.”), 5/17/90, at 2. Since the Commonwealth presented testimony opposing appellee's suppression motion, we find that it properly preserved the issue below. Furthermore, even though the Commonwealth may not have explicitly argued this, it impliedly raised the issue by asserting that the police had probable cause to conduct the search. Accordingly, we reject appellee’s assertion that this question has not been preserved for our review.