Appeal No. 69 W.D.Appeal Docket 1988 from the Order of the Superior Court, 374 Pa. Super. 641; 538 A.2d 938 (1988), of Pennsylvania dated December 30, 1987 at No. 187 Pittsburgh, 1987 which affirmed the Judgment of Sentence imposed by the Erie County Court of Common Pleas, Criminal Division entered on January 29, 1987, at No. 1070 of 1986. Appeal No. 70 W.D.Appeal Docket 1988 from the Order of the Superior Court,
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, McDermott and Papadakos, JJ., vote to affirm. Flaherty, J., filed an opinion in support of reversal joined by Nix, C.j., and Zappala, J.
The Court being equally divided the decision of the Superior Court is affirmed.
Opinion IN SUPPORT OF REVERSAL
At 12:45 a.m. on June 21, 1986 Erie police executed a search warrant at 1823 Chestnut Street, in Erie. The warrant authorized a search of one James Heidelberg,*fn1 the premises, and "all occupants therein." When John Heidelberg
answered the door, police saw three persons seated around a coffee table on which were a propane tank, commonly used for freebasing cocaine, a razor blade, a marijuana pipe, and a patina of white powder. A search of all persons present revealed a small quantity of hashish on the person of appellant John Heidelberg and a small quantity of cocaine on the person of appellant Douglas Gilliam. Both Heidelberg and Gilliam were charged with possession of a controlled substance. Following a non-jury trial before the Court of Common Pleas of Erie County, Criminal Division, Heidelberg was sentenced to a fine, costs and seven to thirty days imprisonment; Gilliam was sentenced to a fine, costs and sixty days to one year imprisonment. Timely post trial motions were filed and denied, and Superior Court affirmed the convictions on direct appeal. We granted allocatur to address a question of first impression: whether a search warrant authorizing the search of all persons at a particular location is constitutionally permissible, under either the Constitution of the United States or the Pennsylvania Constitution, when those persons are unnamed or unidentified in the warrant. The cases are consolidated because they arise out of the same facts and raise the same legal issue.
Superior Court reasoned that there are two general approaches to the "all persons present" warrant. The first is to invalidate all such warrants on the grounds that they do not meet the specificity requirement of either the Fourth Amendment to the United States Constitution or the parallel requirement of Article 1, Section 8 of the Pennsylvania Constitution.*fn2 The alternate approach is to analyze each
warrant individually to determine whether there is probable cause to believe that any persons present are probably involved in a criminal event. This position is perhaps best articulated by Chief Justice Weintraub, of the New Jersey Supreme Court, in State v. DeSimone:
On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense. Such a setting furnishes not only probable cause but also a designation of the persons to be searched which functionally is as precise as a dimensional portrait of them.
As to probable cause, it must be remembered that the showing need not equal a prime facie case required to sustain a conviction. No more is demanded than a well-grounded suspicion or belief that an offense is taking place and the individual is party to it . . . . And, with regard to the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general warrant if the individual is thus identified by physical nexus to the on-going criminal event itself. In such a setting, the officer executing the warrant has neither the authority nor the opportunity to search everywhere for anyone violating a law. So long as there is good reason to suspect or believe that ...