In the Int. of: I.M.S., a Minor

J-A22002-15
2015 PA Super 188IN THE INTEREST OF: I.M.S., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
No. 691 MDA 2015
Appeal from the Dispositional Order March 9, 2015
In the Court of Common Pleas of Cumberland County
Juvenile Division at No(s): CP-21-JV-0000238-2014
BEFORE: BOWES, JENKINS, AND PLATT,* JJ.
OPINION BY BOWES, J.: FILED SEPTEMBER 08, 2015
I.M.S. appeals from the dispositional order entered by the juvenile
court adjudicating him delinquent for the commission of acts constituting
possession of marijuana and possession of drug paraphernalia. We affirm.
Juvenile was a passenger in a vehicle stopped as a result of an
inoperable driver’s side headlight. Officer Brian Barnes effectuated the
traffic stop along with his partner. After the driver of the car, Jordan Cox,
provided several inconsistent answers to questions regarding his travel,
Officer Barnes asked him to exit the vehicle and step to the rear of the
automobile. At that time, Mr. Cox admitted that Juvenile had been smoking
marijuana in the car. He also informed the officer that he was unsure if
Juvenile had marijuana in a drawstring knapsack Juvenile possessed in the
*
Retired Senior Judge assigned to the Superior Court.
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vehicle. Officer Barnes then removed Juvenile from the car and questioned
him. When he did so, he noticed marijuana flakes on Juvenile’s shirt and
pants. He also detected an odor of burnt marijuana.
Juvenile acknowledged that his bag contained marijuana and
paraphernalia. Officer Barnes then asked Mr. Cox for permission to search
the car. Mr. Cox consented to a search of the vehicle. Officer Barnes, in the
process of searching the car, also searched Juvenile’s bag and found
marijuana, rolling papers, a grinder, a scale, and a glass smoking pipe. The
bag was not on Juvenile’s person, but was located within reach in the
backseat floor area behind the driver’s seat. Juvenile was arrested and
charged with delinquent acts of possessing marijuana and drug
paraphernalia.
Juvenile filed a motion to suppress. The suppression court ruled that
under Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (plurality),1
wherein our Supreme Court adopted the federal warrantless automobile
search exception, Officer Barnes had authority to search a passenger’s
belongings. Thereafter, the matter proceeded to an adjudicatory hearing.
The juvenile court found Juvenile delinquent. Juvenile timely appealed. He
presents one issue for our review.
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1
A majority of justices agreed to align Pennsylvania constitutional law with
the Fourth Amendment jurisprudence of the United States Supreme Court
with respect to warrantless vehicle searches.
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I. Whether evidence found inside the Appellant’s drawstring bag
during a search of an automobile in which Appellant was a
passenger should have been suppressed, when the evidence
demonstrated that the officer knew the bag belonged to the
Appellant, searched the bag by relying only upon the consent of
the driver who did not have actual or apparent authority to
consent to the search of [the] bag, and the Appellant never
consented to the search of his belongings?
Appellant’s brief at 5.
In reviewing a juvenile court order denying a suppression motion, we
consider the factual findings of the juvenile court and whether they are
supported by record evidence. In re T.B., 11 A.3d 500, 505 (Pa.Super.
2010). We consider only the evidence of the Commonwealth’s witnesses
and testimony of the defendant’s witnesses that are not contradicted by the
suppression record. Id. Where the evidence supports the juvenile court’s
factual findings, we are bound by them and will reverse only where the legal
conclusions derived from those facts are in error. Id.Juvenile argues that, under the Fourth Amendment and Article I, § 8
of the Pennsylvania Constitution, the warrantless search of his bag was
unconstitutional. He contends that he had a reasonable expectation of
privacy in his own backpack and that a warrantless search of his personal
luggage, which was closed, violated his protected privacy interests. In
addition, Juvenile maintains that Mr. Cox’s consent to search the vehicle did
not include consent to search Juvenile’s personal belongings. In this
respect, Juvenile also suggests that because Officer Barnes testified to
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conducting the search based on consent, the federal warrantless automobile
jurisprudence articulated by the United States Supreme Court and recently
adopted in Gary, supra, is not controlling.
The Commonwealth responds that since the officer had probable cause
to search the vehicle after a lawful stop, Gary applies. It adds that because
Pennsylvania has now adopted the federal warrantless automobile search
exception, under United States Supreme Court precedent, specifically,
Wyoming v. Houghton, 526 U.S. 295 (1999), such a search can include
containers belonging to passengers in the vehicle.
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. Am. IV. Similarly, Article I, § 8 of the Pennsylvania Constitution
reads,
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 by the affiant.
Pa.Const. Art. I, § 8.
The United States Supreme Court has opined, under similar
circumstances, “In determining whether a particular governmental action
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violates [the Fourth Amendment], we inquire first whether the action was
regarded as an unlawful search or seizure under the common law when the
Amendment was framed.” Houghton, supra at 299. As recently noted by
this Court, the original purpose of the early search and seizure amendments
was aimed at prohibition of general warrants. Commonwealth v. Haynes,
116 A.3d 640, 648 (Pa.Super. 2015).
Indeed, anti-federalist writings condemned the original federal
constitution’s absence of a bill of rights, claiming that it would allow
unreasonable searches and seizures. These writings, however, focused not
on warrantless searches as occurred here, which were generally illegal
because they were unauthorized by common law or statute save for limited
circumstances, but on the issuance of general warrants. For example,
Pennsylvania anti-federalist writer, Centinel,2 in the first of his eighteen
articles printed in Philadelphia between October 5, 1787 and April 9, 1788,
wrote the following:
Your present frame of government, secures to you a right to
hold yourselves, houses, papers and possessions free from
search, and therefore warrants granted without oaths or
affirmations first made, affording sufficient foundation for them,
whereby any officer or messenger may be commanded or
required to search your houses or seize your persons or
property, not particularly described in such warrant, shall not be
granted.
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2
Centinel was a pseudonym for Samual Bryan, son of George Bryan, the
latter of whom was a member of the early Pennsylvania Supreme Court.
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Letters of Centinel, No. 1., reprinted in The Anti-Federalist Papers and the
Constitutional Convention Debates (Ralph Ketcham, ed. 1986). He added,
“you yourselves are called upon to say, whether your houses shall continue
to be your castles; whether your papers, your persons and your property,
are to be held sacred and free from general warrants[.]” Id. (emphasis
omitted).
Those Pennsylvania representatives who opposed the federal
constitution at the Pennsylvania ratification convention issued a minority
report complaining of the lack of a bill of rights. They proffered an
amendment stating, “warrants unsupported by evidence, whereby any
officer or messenger may be commanded or required to search suspected
places, or to seize any person or persons, his or their property, not
particularly described, are grievous and oppressive, and shall not be granted
. . . .” The Address and Reasons of Dissent of the Minority of the Convention
of Pennsylvania to their Constituents, reprinted in The Anti-Federalist Papers
and the Constitutional Convention Debates, 239 (Ralph Ketcham, ed. 1986).
Modern day jurisprudence, however, has focused on warrantless
searches and seizures, a problem that largely did not exist at the time of
ratification due to the extremely limited authority possessed by peace
officers. See Haynes, supra at 651 (discussing limited authority of
constables). While some warrantless arrests would not have been
considered against common law and therefore unreasonable, the type of
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warrantless arrest allowed at that time was far more circumscribed than
exists today. See id.
Even more restricted was a warrantless search, which was essentially
permissible only in the context of a lawful arrest or perhaps if authorized by
statute for purposes of enforcing commercial laws, i.e., civil regulatory
searches. Id. at 653 (“there was no common law authority for a warrantless
search in a home, other than a search for the fleeing individual or of an
individual's person incident to an arrest.”); See also Thomas K. Clancy, The
Importance of James Otis, Mississippi Law Journal, Vol. 82:2, 513 (2013)
(“The [United States Supreme] Court’s initial cases were notable for their
premise that a warrant complying with the specifications of the Warrant
Clause was required for all searches. The Court’s only acknowledged
exception in those early cases was for searches incident to arrest, which had
a strong historical pedigree.”); Agnello v. United States, 269 U.S. 20, 33
(1925) (“Save in certain cases as incident to arrest, there is no sanction in
the decisions of the courts, federal or state, for the search of a private
dwelling house without a warrant.”); Collection Act of 1789, 1 Stat. 29(federal statute authorizing warrantless searches of ships to prevent
smuggling);3 see also Act of Dec. 21, 1780, ch. 190, § 10 (reprinted in The
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3
The relevant portion of the Collection Act read,
(Footnote Continued Next Page)
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First Laws of the Commonwealth of Pennsylvania 422, 424-25 (John D.
Cushing ed., 1984) (Pennsylvania statute authorizing warrantless searches
of ships by customs official but requiring a warrant for dwellings suspected
of housing smuggled goods).4
The United States Supreme Court first addressed a Fourth Amendment
challenge to a warrantless search of a car in Carroll v. United States, 267
US. 132 (1925). Carroll stands for the proposition that warrantless
searches of automobiles would not have been considered unreasonable at
the time of ratification of the Fourth Amendment because Congress, under
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(Footnote Continued)
That every collector, naval officer and surveyor, or other person
specially appointed by either of them for that purpose, shall have
full power and authority, to enter any ship or vessel, in which
they shall have reason to suspect any goods, wares or
merchandise subject to duty shall be concealed; and therein to
search for, seize, and secure any such goods, wares or
merchandise; and if they shall have cause to suspect a
concealment thereof, in any particular dwelling house, store,
building, or other place, they or either of them shall, upon
application on oath or affirmation to any justice of the peace, be
entitled to a warrant to enter such house, store, or other place
(in the daytime only) and there to search for such goods, and if
any shall be found, to seize and secure the same for trial; and all
such goods, wares and merchandise, on which the duties shall
not have been paid or secured, shall be forfeited.
4
A 1783 Massachusetts revenue search statute permitted warrantless
searches by customs officials of ships and commercial premises if they
provided a sworn writing showing just cause to suspect that uncustomed
goods were being concealed. Virginia also authorized warrantless revenue
searches of ships. Va. Acts, ch. 40, §§ 10-11 (1782) (reprinted in Virginia:
The State at Large, 501 (William Waller Hening ed., 1822).
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admiralty law and customs statutes, permitted the warrantless seizure and
search of ships. Nonetheless, the Court therein set forth that whenever
practicable, a warrant should be sought and used. Carroll, supra at 156.
The Carroll Court did not discuss or marshal a single case where the
Fourth Amendment was even suggested to apply to a ship seizure, perhaps
because ships were not considered to fall within the ambit of the Fourth
Amendment’s protections. A more apt analogy was to personal carriages.
Justice Scalia, who authored Houghton, supra, himself has analogized cars
to carriages with respect to the Fourth Amendment. See United States v.
Jones, 132 S.Ct. 945, 951 n.3 (2012). In this respect, Carroll did cite to a
short-lived 1815 statute, and wartime measure, authorizing warrantless
searches by customs officers of any vessel, carriage, beast, or person whom
they suspected possessed smuggled goods. Act of March 3, 1815, ch. 94 §
2, 3 Stat. 231. That law, never challenged on constitutional grounds,
authorized customs officials statutory warrantless authority to search those
engaged in commercial transportation.5 Importantly, of course, Carroll was
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5
There are, of course, limits to the presumption that statutes passed near in
time to the ratification of the federal constitution reflect evidence of that
constitution’s meaning. For example, few contend that the Alien and
Sedition Acts were totally consistent with various constitutional protections.
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not discussing common law and the laws being analyzed were premised on
statutory grants of power to government agents.6
The common law did not authorize warrantless searches of any person
traveling; rather, an officer could conduct a search pursuant to express
statutory authority or after lawfully arresting the person. Thus, under the
common law, absent statutory authority, peace officers could not conduct
warrantless searches of those traveling via carriage unless done as a lawful
search incident to an arrest. Nevertheless, the Houghton Court applied the
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6
Frequently overlooked in discussion of warrantless searches is that they
were only permitted, outside the context of a search incident to an arrest, if
express statutory authority existed authorizing the government official to
perform the search. While courts have concluded that the existence of these
early statutes permitting warrantless searches for smuggled goods suggests
that the framers would not have viewed warrantless searches outside a
home as unreasonable, they have not considered that the framers expressly
limited warrantless searches via the legislation permitting them. In the
absence of such statutory law, the search would almost certainly have been
considered against the law of the land, i.e., unlawful, because there was an
absence of authority to perform such a search.
Frankly, the historical distinction between statutory authorization and
common law authority is an important one. Here, the First Congress’
passage of statutory law permitting limited warrantless searches of
commercial vehicles and merchants is evidence that a modern day statute
authorizing such limited power to government officials would not run afoul of
the Fourth Amendment. It, however, is not altogether strong evidence that
police could conduct warrantless searches based on the common law. See
e.g., Tracy Maclin, The Complexity of The Fourth Amendment: A Historical
Review, 77 B.U. L.Rev. 925, 945 (2014) (discussing colonial Massachusetts
opposition to ex officio warrantless searches by customs officers).
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Carroll holding that warrantless searches of cars are not unreasonable
where probable cause exists.
In Houghton, supra, Wyoming Highway Patrol effectuated a traffic
stop of a car for speeding and driving with a broken brake light. Three
individuals were in the car. While questioning the driver, an officer noticed a
hypodermic syringe in the driver’s shirt pocket. The driver admitted that he
used the syringe for drugs. Police then removed the two passengers, both
women, from the car and searched the passenger compartment for drugs.
In the backseat was a purse that belonged to Houghton, one of the
passengers. Inside, police found a brown pouch and black wallet. The
brown pouch contained methamphetamine and a syringe and the black
wallet held an additional syringe with methamphetamine.
The suppression court denied a suppression motion and a jury
convicted Houghton. The Wyoming Supreme Court reversed, concluding
that police did not have probable cause to believe the passenger had
committed a crime and therefore there was no probable cause to search her
personal items. Although asserting that its Fourth Amendment analysis
should begin with an examination of the common law at the time of the
passage of the Fourth Amendment, the Houghton Court proceeded directly
to discussing Carroll, supra, which analyzed statutory law at the time of
the founding rather than common law.
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The Court then relied on United States v. Ross, 456 U.S. 798(1982), which also had based its analysis on Carroll. The Ross Court found
that statutes allowing warrantless searches of vessels and beasts that
imported merchandise showed that lawful searches of the vessel included
any container that could contain the object of the search. Houghton,
supra at 301 (citing Ross, supra at 820 n.26). Accordingly, the Houghton
Court reasoned that where “there is probable cause to search for contraband
in a car, it is reasonable for police officers-like customs officials in the
founding era-to examine packages and containers without a showing of
individualized probable cause for each one.” Houghton, supra at 302.
Houghton, however, did not have a substantial impact in
Pennsylvania when it was decided since, at the time, Pennsylvania case law
interpreting Article I, § 8 of our state constitution provided Pennsylvanians
with greater privacy protections. A warrantless search of an automobile was
permissible if police had probable cause to search and exigent circumstances
existed beyond the mobility of the car. See Commonwealth v. White, 669
A.2d 896 (Pa. 1995); see also Commonwealth v. Rosenfelt, 662 A.2d
1131 (Pa.Super. 1995), abrogated by Gary, supra.
In Gary, supra, the Pennsylvania Supreme Court switched course
from its earlier mid-1990’s cases that provided greater protections to
citizens of Pennsylvania in their automobiles. It aligned Pennsylvania
jurisprudence with the United States Supreme Court’s interpretation of the
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Fourth Amendment with regard to vehicle searches. In Gary, Philadelphia
police observed a vehicle with tinted windows that they believed violated the
Motor Vehicle Code. After stopping the automobile, the police detected the
smell of marijuana emanating from the vehicle. Gary told police that there
was marijuana in the car and police summoned a canine unit to conduct a
sniff of the vehicle. Gary, who had been placed in the back of a police
cruiser, then attempted to flee but was captured. Police found two pounds
of marijuana under the front hood of the car.
Gary unsuccessfully litigated a suppression motion and was found
guilty of possession with intent to deliver marijuana. This Court reversed
and remanded for a new trial, concluding that, because Gary was in custody
at the time of the search of the automobile, no exigent circumstances
existed for the search. The Pennsylvania Supreme Court reversed this
Court, finding that the only exigent circumstance required of an automobile
is its mobility. Thus, it held that, where police possess probable cause to
search a car, a warrantless search is permissible.
The Gary Court, nonetheless, did not face the situation where a
passenger was also in the automobile and whether probable cause to search
the car also authorized a search of a passenger’s belongings therein.
However, in light of the Gary Court’s clear holding that Pennsylvania
automobile search and seizure law and federal Fourth Amendment
jurisprudence are coextensive, Houghton necessarily now applies.
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Application of Houghton herein compels affirmance. Moreover, in this
case, unlike Houghton, police did have probable cause to believe that
Juvenile was committing a crime. Here, the officer had probable cause to
arrest Juvenile after he admitted to possessing drugs. The officer, therefore,
would have been authorized to conduct a search incident to arrest of the
backpack. Juvenile’s claim fails.
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2015
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