Appeal from the Order Entered May 18, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005820-2011, CP-51-CR-0005819-2011
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J. [*]
In this consolidated appeal, the Commonwealth argues that the suppression court erred in granting Morales's and Maitinez's motions to suppress physical evidence on the grounds no exigent circumstances existed to conduct a warrantless search, and in finding the that independent source rule did not apply. After a thorough review of the submissions by the parties, the certified record, and relevant law, we reverse and remand for further proceedings consistent with this memorandum.
The suppression court set forth the relevant factual and procedural history of this case as follows.
On April 7, 2011, Philadelphia Police Officer John Seigafuse, along with a backup plainclothes unit, was surveilling a house at 2806 Hope Street in the Fairhill section of Philadelphia. Officer Seigafuse had received information from the Criminal Intelligence Unit that a Hispanic female who drove a red Honda would leave the 2800 block of Hope Street each morning at approximately 8 a.m., drive to the 4100 block of I Street where she would pick up one bag of heroin, and drive back to the 2800 block of Hope Street, where she would sell the heroin.
At approximately 7:45 a.m., Officer Seigafuse observed two Hispanic females, later identified as Evelyn Vaquez and Venesa Casiano, emerge from 2806 Hope Street and get into a red Honda that was parked in front of the house. Accompanied by the plainclothes backup unit, Officer Seigafuse, who was also wearing plainclothes and driving an unmarked car, followed the Honda to the 4100 block of I Street. When Ms. Vaquez and Ms. Casiano reached 4125 I Street, they both went into the house for approximately five to ten minutes. They then emerged from the house, got back into the Honda, and drove away. One of the women was carrying a black bag she did not have when she entered the house.
At approximately 8:30 a.m., Officer Seigafuse called for a marked unit, which assisted in following the car and pulling the car over at the intersection of A Street and Ontario Street, approximately one and one-half miles from 4125 I Street. As police got out of their vehicles, Officer Seigafuse noticed Ms. Vaquez stick the black bag behind the console of the car's gear shift. Police removed both females from the car and asked permission to search the car. The driver refused to give police permission. Police then brought in a K9 Unit that was trained to detect narcotics. The K9 Unit arrived, and a dog gave a positive indication for the presence of narcotics in the car.
After securing the vehicle, Sergeant James Keenan instructed Officer Seigafuse to "go back to 4125 [I Street] and secure that property to make sure nobody came out and went in that property." Officer Seigafuse returned to 4125 I Street with his partner, Officer Rivera, and set up surveillance in his unmarked car in front of the property. The officers did not turn their lights or sirens on or notify the occupants of the house as to their arrival, as the goal was to conduct surveillance of the property and not be detected. A marked unit with Officer Sawicki and Officer Hamilton was parked in the rear driveway of the property.
After ten minutes of waiting at the property, at approximately 10:40 a.m., [Maitinez] came out of the back of the property and was stopped and searched by Officer Sawicki. Jason Morales came out of the front of the property with another male, Hiram Velasquez-Soto. Both men were stopped and searched by Officer Seigafuse across the street, north of the property. Officer Seigafuse recovered $536 in cash from Mr. Morales, and recovered $315 cash and a small jar of marijuana from Mr. Velasquez-Soto. According to Officer Seigafuse, the police had no reason to believe that anyone who might have been in the house at 4125 I Street knew that the police had stopped and detained Ms. Vaquez, Ms. Casiano, Mr. Morales, Mr. Velasquez-Soto or [Maitinez].
At approximately 11:00 a.m., [Maitinez], Mr. Morales and Mr. Velasquez-Soto were taken to the police station. Members of the Narcotics Field Unit arrived at the property at 4125 I Street in order "[t]o secure the premises….[j]ust to make sure no one was in there to destroy evidence or property." The officers did not attempt to conceal their arrival, pulling up directly in front of the house in a marked car. Sometime between 10:30 and 11:30 a.m., Philadelphia Police Officer Michael Keenan and Philadelphia Police Sergeant James Schrack, both in uniform, then walked through the property. As Officer Michael Keenan walked through a basement bedroom, he saw a yellow tinted packet containing a white substance that he believed to be cocaine, sitting on top of a television in plain view.
At 2:55 p.m. the police applied for a search warrant for both the Honda and the house at 4125 I Street. Included in the affidavit of probable cause in support of the search warrant application was an averment describing the seizure of narcotics from the top of the television set during the sweep of the property.
At 3:15 p.m., the search warrant was executed and additional contraband was recovered from the home. Officer Keenan, who had performed the initial warrantless search of the premises, was also on the team that secured and executed the search warrant.
Suppression Court Opinion, 8/13/12, at 2-5 (record citations omitted).
On appeal, the Commonwealth argues that the initial warrantless search of 4125 I Street, which provided information used in the affidavit of probable cause for the search warrant, was a permissible protective sweep based upon exigent circumstances of preventing the destruction of evidence. Additionally, the Commonwealth also argues that even if there were no exigent circumstances, the affidavit of probable cause still contained sufficient untainted information to support the search warrant of the house.
When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.
Commonwealth v. Johnson, 68 A.3d 930, 934 (Pa.Super. 2013) (citation omitted).
The standards of review for a warrantless search are well settled:
The law of search and seizure remains focused "on the delicate balance of protecting the right of citizens to be free from unreasonable searches and seizures and protecting the safety of our citizens and police officers by allowing police to make limited ...