Com. v. Andrews, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CORNELIUS ALEXANDER ANDREWS,
Appellant No. 1745 WDA 2014
Appeal from the Judgment of Sentence Entered February 28, 2011
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000132-2009
BEFORE: SHOGAN, OLSON, and WECHT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 21, 2015
Cornelius Alexander Andrews (“Appellant”) appeals from the judgment
of sentence entered on February 28, 2011, in the Court of Common Pleas of
Blair County. We affirm.
The suppression court set forth the facts of this case as follows:
The date of the alleged offense is on or about July 10, 2008,
within the City of Altoona, involving a controlled purchase
through [the] use of a confidential informant (hereinafter “CI”).
On the date of [the] incident, Officer Christopher Moser,
Detective Thomas Brandt, and Patrolman Andrew Crist, of the
West IV Drug Task Force, came into contact with the CI . . . at
his residence within the City of Altoona. The CI was the initial
target of the officer’s [sic] investigation. During such time, the
CI advised the officers that he could immediately arrange a drug
transaction with his alleged supplier, [Appellant]. The officers
then searched the CI and the residence for controlled
substances, US currency and contraband, with negative results.
In the presence of Detective Thomas Brandt, the CI placed a
phone call to [Appellant] to arrange for a $4,000 purchase of
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four ounces of cocaine. Detective Brandt verified that the call
was placed to a certain phone number, and that he was able to
hear what the CI was saying, but that he did not overhear
anything said from the other end of the conversation.
[Appellant] subsequently entered the CI’s residence, wearing a
motorcycle helmet with a raised visor. The CI verified that
[Appellant] provided him with the cocaine in exchange for the
$4,000. The CI immediately turned over the cocaine to
Detective Brandt, who was undercover.
Upon exiting the residence, [Appellant] was taken into
custody by Officer Christopher Moser of the Altoona Police
Department. Officer Moser was assigned to a surveillance detail
outside the CI’s residence. Officer Moser had been informed that
the target would arrive via motorcycle, and he observed an
individual riding a motorcycle wearing a full-face helmet pull up
to the residence and enter. Upon observing the same individual
leave the residence, Officer Moser then detained him.
Suppression Opinion, 6/26/09, at 1-2 (internal citations omitted). Following
Appellant’s arrest, Officer Crist opened Appellant’s cellular phone to access
its number in order to verify it was the same number the CI called for the
drug purchase. N.T. Preliminary Hearing, 12/29/08, at 65–66.
Appellant was arrested and charged with possession with intent to
deliver cocaine, possession of cocaine, and criminal use of communication
facility. Following a preliminary hearing on December 29, 2008, the charges
were bound over to court. Appellant filed a pretrial motion to suppress
evidence retrieved from his cellular phone, arguing that the search of his
cellular phone incident to his arrest was unlawful. Oral argument was held
on May 22, 2009, at which time a transcript of the preliminary hearing was
admitted into the record and used by stipulation as the factual basis for the
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suppression court’s decision. The suppression court denied Appellant’s
motion. Suppression Opinion, 6/26/09, at 7.
Appellant proceeded to a bench trial where he was convicted of the
above charges. Appellant did not appear for sentencing and remained a
fugitive until apprehended by United States Marshalls in December of 2010.
On February 11, 2011, the trial court sentenced Appellant to incarceration
for an aggregate term of twelve to twenty-four months followed by a period
of probation. Sentencing Order, 2/28/11. Appellant did not file a direct
appeal. On August 16, 2011, he filed a petition for post-conviction relief,
seeking reinstatement of his direct appeal rights, which the trial court
granted on May 3, 2012. This appeal followed. Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant challenges the denial of his motion to suppress
evidence retrieved from his cellular phone without a warrant.
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.... The 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.
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Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations
and quotation marks omitted).
Appellant argues that the trial court “erred in determining that the
warrantless search of his cell phone upon his arrest was lawful.” Appellant’s
Brief at 8. According to Appellant, the evidence should have been
suppressed because the police did not secure a search warrant before
searching his cellular phone. In support of his position, Appellant relies on
our decision in Commonwealth v. Stem, 96 A.3d 407 (Pa. Super. 2014).
In Stem, we addressed this issue, relying upon the legal analysis and
holding of the United States Supreme Court in Riley v. California, ___ U.S.
___, 134 S.Ct. 2473 (2014). The Riley Court determined that the
warrantless search of a cellular telephone conducted incident to an arrest is
unconstitutional. Stem, 96 A.3d at 414 (citing Riley, 134 S.Ct. at 2495).
In response, the Commonwealth concedes that, “while the seizure of
the cellular telephone at issue was lawful pursuant to a search incident to
arrest, the warrantless search of the phone was premature . . . [because]
there were no exigent circumstances or exceptions to the warrant
requirement.” Commonwealth’s Brief at 10. “However,” the Commonwealth
continues:
the cellular telephone at issue [was] lawfully in police custody
and could [have been] searched pursuant to a search warrant
that summarized the evidence in this case prior to the search of
said telephone. Accordingly, [the Commonwealth] respectfully
submits that the doctrine of inevitable discovery is applicable
and the evidence was properly admitted.
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Id. (citations omitted).
With regard to the inevitable discovery rule, under
Pennsylvania law:
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, 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.
See Commonwealth v. Bailey, 986 A.2d 860, 862
(Pa.Super.2009), quoting Commonwealth v. Gonzalez, 979
A.2d 879, 890 (Pa.Super.2009).
Commonwealth v. Gatlos, 76 A.3d 44, 60 n.13 (Pa. Super. 2013).
In denying Appellant’s motion, the suppression court applied the
inevitable discovery doctrine with the following analysis:
After seizure of the cell phone from [Appellant],
Officer Crist testified that at the Altoona Police Department
station, he opened [Appellant’s] cell phone to access the phone
number to verify that it was the same number called by the CI.
(PH Tr., pp. 65–66).
The Commonwealth argues that the seizure of the cellular
telephone at issue was lawful pursuant to a search incident to a
lawful arrest. . . . [W]e agree. The Commonwealth concedes,
however, that the warrantless search of the phone was
premature. . . . The Commonwealth submits, however, that the
cell phone at issue is lawfully in police custody and could be
searched . . . pursuant to a search warrant that summarized the
evidence in this case prior to the search of the cell phone.
Therefore, the Commonwealth requests that we allow the
evidence to be admitted under the doctrine of “inevitable
discovery”. Commonwealth v. Rood, 686 A.2d 442 (Pa.
Cmwlth. 1996).
* * *
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Based upon the factual circumstances herein, we are
satisfied that the “inevitable discovery doctrine” is
applicable. Both the inevitable discovery doctrine and
independent source rule[1] are intended to “put the police in the
same, not a worse, position than they would have been in if no
police error or misconduct had occurred.” Rood, 686 A.2d at
448, quoting Nix v. Williams, 467 U.S. 431 443, 104 S.Ct.
2501, 81 L.Ed.2d 377 (1984). Suppressing evidence which . . .
would have inevitably been discovered, would effectively place
the police and prosecutors in a worse position when the
particular evidence . . . would have inevitably been, lawfully
obtained. In such situations, there is no significant causal
connection between the acquisition of the evidence and the
unlawful police conduct, and evidence so obtained is not
considered to be tainted by, or to be the fruit of, an illegal
search. Id.Suppression Opinion, 6/26/09, at 6–7 (emphasis in original).
Upon review, we conclude that the suppression court’s factual findings
are supported by the record and its legal conclusions drawn from those facts
are correct. Officer Crist had the authority to seize Appellant’s cellular
phone incident to a lawful arrest. See Riley, 134 S.Ct. at 411 (recognizing
that the police are constitutionally permitted to seize and secure cellular
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1
We recently reiterated the independent source doctrine in a cellular phone
search case:
There is a two-prong test governing the application of the
independent source doctrine: (1) whether the decision to seek a
warrant was prompted by what was seen during the initial
warrantless entry; and, (2) whether the magistrate was
informed at all of the information improperly obtained.
Commonwealth v. Mosley, 114 A.3d 1072, 1081 (Pa. Super. 2015)
(quoting Commonwealth v. Ruey, 854 A.2d 560, 564–565 (Pa. Super.
2004)).
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phones in order to prevent the destruction of evidence). At the police
station, while Officer Crist was packaging the money, the drugs, and the
phone, he opened the phone in order to obtain the number. N.T., 12/29/08,
at 65–66. The record is unclear regarding whether Officer Crist actually
“searched” the phone (i.e., by scrolling through screens, swiping the phone
on, or otherwise accessing data) like in Stem, where a police officer
inspected the cellular phone after the defendant’s arrest, turned on the
phone, selected the picture icon, and then searched the photo data. Stem,
96 A.3d at 408. Nevertheless, even if Officer Crist improperly searched the
cellular phone confiscated incident to Appellant’s arrest, the phone was
properly in police custody, and the phone number would have inevitably
been discovered through lawful means. The police could have called the
number dialed by the CI to verify that Appellant’s phone was used for the
drug transaction. Additionally, Officer Crist did not search for or obtain any
other information from Appellant’s phone, unlike in Stem where the officer
selected the smart phone picture icon and uncovered what appeared to be a
photograph depicting child pornography. Id. Thus, we conclude that any
improper viewing by Officer Crist did not warrant setting aside a conviction
that would have been obtained without police misconduct. Bailey, 986 A.2d
at 862. Hence, the suppression court did not err in denying Appellant’s
motion.
Judgment of sentence affirmed.
Judge Olson joins the memorandum.
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Judge Wecht concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2015
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