No. 92 E.D. Appeal Dkt. 1983, Appeal from the Order of the Superior Court of Pennsylvania at No. 2696 Philadelphia 1980, dated February 4, 1983, affirming the Order of the Court of Common Pleas of Chester County, at No. 1064-80 which Order suppressed Commonwealth evidence,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Hutchinson, J., file concurring opinions.
In this appeal review is sought from an order of Superior Court, en banc, affirming the Court of Common Pleas of Chester County. The trial court granted appellee's motion to suppress evidence seized after officials searched appellee at the Chester County Farms Prison. In suppressing the evidence the trial court held no probable cause existed for the search and appellee did not knowingly and voluntarily consent to the search.
Superior Court affirmed the suppression order, agreeing appellee had not consented to the search. They did not accept the trial court determination, however, that probable cause was necessary to conduct a search, finding reasonable suspicion would suffice. The Superior Court also made an independent determination that it could no longer "accept" an appeal from an order suppressing evidence following the Commonwealth's good faith certification that the prosecution will be terminated or substantially handicapped. Commonwealth v. Dugger, 311 Pa. Super. 264, 276, 457
A.2d 877, 883 (1983). The Superior Court held that an order suppressing evidence is appealable only when it is apparent from the record that the order terminates or substantially handicaps the prosecution. The Commonwealth, appellant herein, petitioned this Court for appeal and we granted allocatur. After consideration, we reverse.
The facts leading to this case are as follows: On June 22, 1980, Mary Ellen Stamper, an employee of Chester County Police Radio, received a telephone call. The caller, a woman who refused to identify herself, informed Miss Stamper that appellee, Billy Dugger, was on his way from Delaware to visit his brother Eddie at the Chester County prison. The woman further explained that appellee would be attempting to deliver marijuana to his brother and that the marijuana would be hidden in balloons on appellee's person. Following this communication, Miss Stamper called the prison officials with the details.
Sometime between 11:00 and 11:30 that morning, appellee arrived at the prison and signed in for a visit. Appellee was met in the reception area of the prison by a Sergeant Phillip Walker and another institution officer. At the officers' request appellee accompanied them to a maintenance shop inside the prison where he would be afforded privacy during a search.*fn1
Appellee was at this point told he was suspected of concealing contraband on his person. He was further informed that he would have to submit to a strip search upon entering the institution and if he willingly submitted, he would be searched. Appellee was also told that if he refused, he would have to leave. Appellee agreed to the search and proceeded to remove his wallet, empty his pockets, and take off his shirt. One of the correctional officers then asked appellee to take off his shoes. After doing so, three balloons, each containing marijuana were recovered.
Appellee was arrested and charged with possession of a controlled substance,*fn2 possession of a controlled substance with intent to deliver,*fn3 and introduction of contraband.*fn4 On October 22, 1980, a hearing was held on appellee's pre-trial motion to suppress the marijuana. As stated, the trial court ordered that the evidence be suppressed, a decision that the Superior Court affirmed.
We first address the issue of the search of the prison visitor in this case. Prison authorities conducted the instant search pursuant to the Act of May 11, 1911, P.L. 274, § 4, 61 P.S. § 384, which reads:
The warden or superintendent of the prison is hereby authorized to search or to have searched any person coming to the prison as a visitor, or in any other capacity, who is suspected of having any weapon or other implement which may be used to injure any convict or person, or in assisting any convict to escape from imprisonment or any spirituous or fermented liquor, drug, medicine, poison, opium, morphine or any other kind of character of narcotics, upon his person.
The trial court in construing this statute held that prison authorities must apply the probable cause standard when conducting searches pursuant to the statute. The Superior Court rejected this interpretation stating:
It is only necessary to read into the Act, first, that the person must be "reasonably suspected" of having narcotics; second, that after being informed that before he may make his visit he must submit to a search, the person must consent to be searched; and third, that ...