decided: October 16, 1974.
COMMONWEALTH OF PENNSYLVANIA
DERAMUS KNOWLES, APPELLANT
Vincent J. Ziccardi, Defender, John W. Packel, Chief, Appeals Div., Defender Assn. of Philadelphia, Anne F. Johnson, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., concurs in the result. Pomeroy, J., filed a concurring opinion in which Eagen, J., joins.
[ 459 Pa. Page 72]
OPINION OF THE COURT
Appellant Deramus Knowles and a co-defendant, Thomas Meadows, were convicted of possession of narcotics*fn1 and each was sentenced to two to five years imprisonment. Pretrial both defendants separately filed seasonable motions to suppress; both motions were denied.
[ 459 Pa. Page 73]
Jointly tried non-jury, both men were found guilty. Separate appeals were taken to the Superior Court. In Meadows' appeal the Superior Court held that certain evidence introduced over objection against both defendants should have been suppressed; Meadows was granted a new trial. Commonwealth v. Meadows, 222 Pa. Super. 202, 293 A.2d 365 (June 16, 1972). The Commonwealth did not seek an allowance of appeal.
Despite the identical circumstances of the two cases, the Superior Court six days later affirmed appellant's judgment of sentence by a per curiam opinionless order. Commonwealth v. Knowles, 222 Pa. Super. 706, 291 A.2d 899 (June 22, 1972). We granted appellant's petition for allowance of appeal.*fn2 On the basis of the Fourth Amendment to the United States Constitution and article I, section 8 of the Pennsylvania Constitution, P.S.,*fn3 we remand for a new trial.
Appellant while sitting behind the wheel of his car, parked on Green Street in Philadelphia, was stopped by a policeman at approximately 11:15 a. m. on May 18, 1970.*fn4 At trial the officer testified that he stopped appellant because his suspicion had been aroused by seeing another man across the street from appellant exit and quickly re-enter a building. The officer further stated that he questioned appellant because appellant was sitting slumped down in the driver's seat. When appellant
[ 459 Pa. Page 74]
was asked what he was doing, he responded that he was waiting for Meadows, who was the man the officer had earlier noticed. At this point, Meadows was called over by the police. After a few words, the officer wrestled a paper bag from Meadows, looked inside, and discovered narcotics. Both Meadows and appellant were then arrested.*fn5
So that appellant could be searched, the officer directed him to place his hands on top of the car. When the officer went to handcuff appellant, he discovered a cigarette package and a rolled-up dollar bill on top of the car where appellant's right hand had been. In the dollar bill was a minute quantity of narcotics.
A patrol wagon arrived and both appellant and Meadows were taken to police headquarters. Upon the arrestees' exit, keys and a telephone receipt were discovered in the wagon. At trial the Commonwealth established that these belonged to Meadows.
Based upon the evidence seized, the police that day obtained a search warrant for the premises on Green Street from which Meadows had been seen entering and leaving. This search revealed more narcotics.
Immediately thereafter and again only upon the evidence thus far seized, a search warrant for appellant's residence was issued. No narcotics were found there, although uncovered was some evidence circumstantially indicating that appellant had been present in the Green Street premises.
All this evidence was introduced at trial against both defendants. Each reasserted his objection to its admission at trial and in post-trial motions.
In Commonwealth v. Meadows, 222 Pa. Super. 202, 293 A.2d 365 (1972), the Superior Court held that the frisk
[ 459 Pa. Page 75]
of appellant's co-defendant and the seizure of the paper bag did not comport with the requirements of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).*fn6 Therefore, Meadows was held to be entitled to a new trial because the suppression court improperly failed to suppress the contraband seized from him on the street and the "fruits" of this unlawful seizure. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963);*fn7 Commonwealth v. Cephas, 447 Pa. 500, 291 A.2d 106 (1972).*fn8 The Superior Court held that the evidence found abandoned in the patrol wagon*fn9 and the contraband seized pursuant to the warrant were both "fruits" of the primary illegality.
The Commonwealth took no appeal from this decision and does not now challenge its correctness. Instead, the
[ 459 Pa. Page 76]
Commonwealth's brief to this Court concedes that Meadows' Fourth Amendment rights were violated.
However, the Commonwealth attempts to justify different disposition of Meadows' and appellant's cases on the theory that the instant appellant has no standing to assert the concededly unconstitutional seizure of contraband. This position fails fully to account for Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
In Jones, the Supreme Court of the United States held, inter alia, that in order to have standing to assert a Fourth Amendment violation, once accused of a possessory crime is not required to assert an interest in the premises searched or the property seized. This Court has not hesitated to give effect to Jones. See, e. g., Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343, 349-351 (1974);*fn10 Commonwealth v. Dembo, 451 Pa. 1, 7, 301 A.2d 689, 693 (1973); Commonwealth v. Rowe, 433 Pa. 14, 249 A.2d 911 (1969) (Opinion in Support of Affirmance) (Eagen, J., joined by O'Brien & Roberts, JJ.); cf. Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974).
[ 459 Pa. Page 77]
In an opinion by Justice Frankfurter the Supreme Court explained this aspect of its decision in Jones.
"[W]e are persuaded by this consideration: to hold to the contrary, that is, to hold that petitioner's failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the Government to have the advantage of contradictory positions as a basis for conviction. Petitioner's conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government."
362 U.S. at 263-264, 80 S.Ct. at 732.*fn11 We, too, find this reasoning compelling.
[ 459 Pa. Page 78]
The sole crime charged in the indictment of appellant was possession of narcotics.*fn12 As the Supreme Court said in Jones, "In cases where the indictment itself charges possession, the defendant in a very real sense is revealed as a 'person aggrieved by an unlawful search and seizure' upon a motion to suppress evidence prior to trial." 362 U.S. at 264, 80 S.Ct. at 732-733.*fn13 See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22
[ 459 Pa. Page 79]
L.Ed.2d 176 (1969). The appellant in this case clearly has standing to challenge the seizure of evidence found in the paper bag taken from co-defendant Meadows.*fn14 Therefore, this evidence must be suppressed.
Also, the narcotics recovered from the dollar bill abandoned by appellant must be suppressed as a fruit of the primary illegality. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Appellant's arrest, and the search incident thereto, were the result solely of the illegal seizure of contraband from Meadows' person. In Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973), this Court unanimously held:
"Although abandoned property may normally be obtained and used for evidentiary purposes by the police, such property may not be utilized where the abandonment is coerced by unlawful police action."
Id. at 143, 299 A.2d at 236 (footnote omitted). Here, an unlawful act -- the seizure of contraband from Meadows -- directly motivated the abandonment, Commonwealth v. Jeffries, 454 Pa. 320, 327, 311 A.2d 914, 918 (1973), and the evidence so obtained must be suppressed.
Like the Superior Court in Commonwealth v. Meadows, we are of the opinion that the contraband seized pursuant to the warrant for the premises from which Meadows was seen leaving must be suppressed. Two reasons compel this result. First, once the evidence illegally seized is removed from the affidavit supporting the Green Street search warrant, it is plain that there was not probable cause sufficient to justify the warrant's issuance. Second, the search with warrant was the fruit of a primary illegality.
[ 459 Pa. Page 80]
As for the first consideration, the law is settled that "the inclusion of illegally obtained evidence does not vitiate a search warrant which is otherwise validly issued upon probable cause reflected in the affidavit and based on proper sources." United States v. Sterling, 369 F.2d 799, 802 (3d Cir. 1966); See Howell v. Cupp, 427 F.2d 36, 38 (9th Cir. 1970); Commonwealth v. Thomas, 444 Pa. 436, 447, 282 A.2d 693, 699-700 (1971). The converse is equally well settled: if illegally obtained evidence is included in an affidavit for a search warrant,*fn15 it must not be considered in determining probable cause, and the affidavit must contain valid allegations -- other than those prompted by official illegality -- sufficient to establish probable cause. United States v. Stoner, 487 F.2d 651 (6th Cir. 1973); United States v. Nelson, 459 F.2d 884 (6th Cir. 1972); cf. Commonwealth v. Meadows, 222 Pa. Super. 202, 208, 293 A.2d 365, 368 (1972).
In this case, the only information that conceivably could have been placed in the affidavit for the search warrant was tainted as "fruit of the poisonous tree." Because no allegations independent of the primary illegality were produced, the warrant was issued without probable cause.
We also agree with the reasoning of Judge Hoffman, writing for the Superior Court in Commonwealth v. Meadows, that the search of the Green Street premises was the fruit of a primary illegality.
"In Wong Sun v. United States, supra, it was held that evidence which was come at by the exploitation of illegality rather than by means sufficiently distinguishable to be purged of taint is 'fruit of the poisonous tree' and must be suppressed. Here the time lapse between the illegal stop and frisk and the various seizures in
[ 459 Pa. Page 81]
the case was exceptionally short. Within thirty minutes of [Meadows' and appellant's] arrest the Green Street search warrant had been obtained, and the officers had proceeded to Green Street to conduct the search in [Meadows'] presence. The Commonwealth has shown no 'attenuation' between the illegal stop and frisk and the search of [Meadows'] residence, nor has it shown an independent origin for the evidence found in the apartment."
222 Pa. Super. at 208, 293 A.2d at 368.
This two-pronged analysis applies with equal force to the search pursuant to a warrant conducted of appellant's residence. This search occurred immediately after the search of the Green Street premises. No legally obtained evidence supported the affidavit; it thus lacked probable cause. No attenuation or independent origin having been demonstrated, this search was likewise fruit of a primary illegality. Evidence seized as a result of that search should have been suppressed.
The order of the Superior Court is reversed. The judgment of sentence of the Philadelphia Court of Common Pleas is vacated and appellant granted a new trial.
POMEROY, Justice (concurring).
My review of the evidence satisfies me that the police in making their initial investigatory stop of the appellant lacked sufficient grounds to do so under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the United States Supreme Court laid down this objective standard for determining when a stop is justified, even in the absence of probable cause for an arrest: ". . . would the facts available to the officer at the
[ 459 Pa. Page 82]
moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. Virtually all that Knowles did was to slouch down in the seat of his automobile as the police drove by. That is hardly sufficient to trigger a police stop. See Commonwealth v. Boyer, 455 Pa. 283, 314 A.2d 317 (1974). It follows, therefore, that both the narcotics obtained from the dollar bill which the appellant abandoned on the roof of his car during the subsequent search, and the heroin seized from the apartment at 2301 Green Street, appellant's key to which was found in his car after his arrest, must be suppressed as fruit of the primary illegality. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Accordingly, I concur in the grant of a new trial.
With regard to the suppression of the contraband narcotics seized from the co-defendant Meadows, and which the Superior Court held to have been illegally seized, Commonwealth v. Meadows, 222 Pa. Super. 202, 293 A.2d 365 (1972), the principal question is that of Knowles' standing to object. Here the majority places strong reliance on the decision of the Supreme Court of the United States in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) in finding that the appellant had "automatic" standing to challenge that evidence. The Supreme Court in Jones held that where the same possession needed to establish standing to object to a search and seizure is also an essential element of the offense charged, a defendant who was present at a search and seizure of another has "automatic" standing to challenge its validity when its fruits are directed against him.
As the majority notes, see n. 11 and accompanying text, supra, the inequitable dilemma which Jones corrected by according standing to one who had no possessory interest was resolved in Simmons v. United States, 390 U.S. 377,
[ 459 Pa. Page 8388]
S.Ct. 967, 19 L.Ed.2d 1247 (1968). In Simmons, it was held that a defendant's testimony relative to his possessory interest in the seized evidence, given to establish his standing to object to the seizure could not thereafter be used against him at trial. In the recent case of Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), Chief Justice Burger, speaking for a unanimous Court, stated that since Simmons, "[t]he self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution." 411 U.S. at 228, 93 S.Ct. at 1568. "Our decision in Simmons," said the Court at a later point, "has removed the danger of coerced self-incrimination." Id. at 229, 93 S.Ct. at 1569. The Court stated, however, that it was not necessary for it then to determine whether Simmons makes the "automatic" standing conferred by Jones "unnecessary", 411 U.S. at 228, 93 S.Ct. 1565, or "warrants its continued survival." Id. at 229, 93 S.Ct. 1565.
The clear implication of Brown is that when the issue is properly before it, the Supreme Court may be disposed to dispense with the concept of "automatic" standing. See e. g., United States v. Dye, 15 Cr.L. 2541 (6th Cir. 8/22/74). For this reason, the heavy reliance upon Jones is, I venture to think, of questionable wisdom.
That point aside, however, my review of the evidence convinces me that the Jones rule is inapplicable here, since Knowles was not charged with the possession of the heroin obtained from the illegal search of Meadows, his co-defendant, but that obtained as a result of the search of the appellant himself and an apartment over which he apparently exercised control. The indictment charged that "on or about May 18, 1970, in Philadelphia County, Deramus Knowles feloniously had in his possession and under his control a certain narcotic drug: Heroin and Cocaine." As the Commonwealth in its brief admits, there was simply no direct evidence which would support
[ 459 Pa. Page 84]
an inference that Knowles possessed and controlled the heroin seized from Meadows.
In Simmons, supra, the Supreme Court explained its decision in Jones thusly: ". . . we held that when, as in Jones, possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence." 390 U.S. at 390, 88 S.Ct. at 974, 19 L.Ed.2d at 1256-1257. Since the offense charged in the case at bar did not involve the possession of the drugs seized from Meadows, the appellant would have no automatic standing under Jones. And since at the suppression hearing, at which he did not testify, Knowles failed to establish any proprietary interest in the drugs seized from Meadows or any interest in the place of seizure (the public highway), he is precluded from objecting to the evidence seized from Meadows. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).