February 11, 2014
COMMONWEALTH OF PENNSYLVANIA Appellant
JOSE MAITINEZ Appellee COMMONWEALTH OF PENNSYLVANIA Appellant
JASON O O. MORALES Appellee
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 intrusions on citizens while investigating crime." Furthermore:
The burden is on the Commonwealth to "present clear and convincing evidence that the circumstances surrounding the opportunity to search were truly exigent ... and that the exigency was in no way attributable to the decision by the police to forego seeking a warrant." Moreover, "[a]ll decisions made pursuant to the exigent circumstances exception must be made cautiously, for it is an exception which by its nature can very easily swallow the rule unless applied in only restricted circumstances."
As our Supreme Court explained:
In a private home, searches and seizures without a warrant are presumptively unreasonable[.] Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment. In determining whether exigent circumstances exist, a number of factors are to be considered[:] (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was made peaceably, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified. Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take time to obtain a warrant, or danger to police or other persons inside or outside the dwelling. Nevertheless, police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.
Commonwealth v. Bostick, 958 A.2d 543, 556-57 (Pa.Super. 2008) (internal citations omitted).
The police may not create their own exigencies.
If the concern was that police activity might have been witnessed by a person remaining in the house who might begin to destroy evidence, such a possibility is of no legal consequence, for police may not create their own exigencies, which they then use as justification for exclusion from normal warrant requirements.
Commonwealth v. Melendez, 676 A.2d 226, 230 (Pa. 1996). Also,
[M]ere speculation that evidence may be destroyed because suspects may learn of police activity is inadequate to justify a warrantless entry, and in any event, police may not bootstrap themselves into exigencies by their own conduct.
Id. at 231.
Initially, we address the Commonwealth's argument that there were exigent circumstances that allowed for the initial warrantless protective sweep of the home. Specifically, the Commonwealth argues that police performed the warrantless sweep in order to prevent the destruction of evidence.
The suppression court determined that the evidence presented at the suppression hearing established "that there was no reason to believe that any potential occupants of the house were aware that police were present, or were aware that anyone had been arrested, until police officers in marked cars pulled up directly in front of the premises before the warrant had been secured." Trial Court Opinion, 8/13/12, at 6-7. Thus, the court concluded that
because the police had no reason to believe that any occupants of the premises were aware of the arrests, the investigation, or the imminent search, there were no exigent circumstances to justify the protective sweep. Accordingly, the warrantless entry into the house was unlawful, and the narcotics discovered on the television set were seized pursuant to an unlawful search.
Id. The certified record supports this determination.
The Commonwealth also argues that the suppression court improperly ignored Officer Keenan's testimony that he was sure that if anyone had looked outside they would know that "something was up." See Commonwealth's Brief at 11-12. This argument ignores three salient points. First, the defense objected to Officer Keenan's opinion on whether anyone in the house would have seen them as speculative and the objection was sustained. See N.T. 4/12/12, at 49. Therefore, the evidence cited by the Commonwealth is not of record and we may not consider it. Second, even if we could accept the evidence, there was no testimony that any of the police officers had any reason to believe that anyone had actually seen them. Exigent circumstances cannot be based upon mere possibilities. Third, if we were to accept the Commonwealth's argument, then the exigent circumstances exception would swallow the warrant requirement whole. All the police would need to do to enter a house without a warrant, would be to gather conspicuously outside a suspected drug house and then claim if anyone inside had seen them the evidence would be destroyed. This would essentially allow the police to create their own exigent circumstances and we do not believe the exigent circumstances exception should apply in such a broad manner.
Based upon the foregoing, we find no error of law in the suppression court's conclusion that the Commonwealth did not possess exigent circumstances allowing for the warrantless entry into the subject house.
However, the Commonwealth also argues that the affidavit of probable cause for the search warrant contained sufficient information from untainted sources to support the warrant and the subsequent search.
The independent source rule has been described as follows:
The classic analysis depends on whether the evidence was the product of the initial illegality or was secured by means sufficiently different to remove the primary taint. If the prosecution can demonstrate that the allegedly tainted evidence was procured from an independent origin—a means other than the tainted sources—the evidence will be admissible. In sum, admissibility will not lie where the road between the original tainted evidence and the poisoned fruit is direct and uninterrupted.
Commonwealth v. Melilli, 555 A.2d 1254, 1262 (Pa. 1989) (internal citations omitted).
Our Supreme Court has explained the application of the independent source rule:
Mr. Justice Cappy, concurring in Mason [637 A.2d 251 (Pa. 1993)], voiced a concern that unless the independent source doctrine was more firmly limited than we had done in Mason, police officers would be likely to believe that if they first requested a warrant, they could then conduct an illegal entry and escape suppression of the evidence which they would later seize pursuant to the warrant. It would appear that his concern was well founded, and we hereby adopt the limitation of the independent source rule which Mr. Justice Cappy proposed in Mason:
[A]pplication of the "independent source doctrine" is proper only in the very limited circumstances where the "independent source" is truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered.
Melendez, supra, 676 A.2d at 231, citing Mason, at 257-58 (italics in original).
In its Pa.R.A.P. 1925(b) statement of errors complained of on appeal, the Commonwealth states, in relevant part, "the warrant was supported by probable cause even without evidence obtained in the sweep, and the independent source and inevitable discovery doctrines applied." In response, the trial court analyzed this claim as an independent source rule argument and denied the Commonwealth relief on the basis that there was not an independent source of the information as required by case law. See Mellili, supra, Melendez, supra, and Mason, supra. We agree with the trial court's assessment. The certified record clearly demonstrates that the information provided in the affidavit of probable cause came from a single line of investigation, spearheaded by Officer Seigafuse. Therefore, the independent source rule provides the Commonwealth with no relief.
However, this does not end our analysis. The Commonwealth has also argued, as part of its independent source claim, that Commonwealth v. Hernandez, 935 A.2d 1275 (Pa. 2007), permits a reviewing court to examine an affidavit of probable cause, and consider only that information that is untainted, and then determine whether the affidavit still demonstrates probable cause. The Commonwealth correctly states the holding but incorrectly classifies the case as being decided under the independent source rule. Although Hernandez addresses tainted and untainted information, there was only a single line of investigation; there was no independent source analysis.
Rather, the factual situation in Hernandez demonstrates the police initially obtained significant information about a possible drug shipment from a local Yellow Freight agent who had looked in a box and saw what he believed to be marijuana. After Hernandez collected the boxes from the shipping depot, the police, claiming exigent circumstances, searched Hernandez's truck and confirmed the presence of marijuana. The police then obtained a search warrant. Our Supreme Court determined there were no exigent circumstances, but the initial information provided from Yellow Freight still provided sufficient probable cause. Therefore, after excising the tainted information, the search warrant was still sufficient.
The Hernandez decision was not a product of an independent source analysis. There was no independent line of investigation. Instead, Hernandez involved circumstances where the police originally obtained untainted information but then overstepped their authority, thereby tainting subsequent information. In such situations, the original untainted information is distinguishable from the subsequently tainted information. Once the tainted information has been identified and excised, a court need only apply a four corners analysis to determine if there remains sufficient probable cause to support the warrant.
"In determining whether a search warrant is supported by probable cause, appellate review is confined to the four corners of the affidavit." Commonwealth v. Galvin, 985 A.2d 783, 796 (Pa. 2009). Additionally, "[t]he issuing authority, in determining whether probable cause has been established, may not consider any evidence outside of the affidavits." Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003) citing Pa.R.Crim.P. 230(B).
A reasonable reading of the legally obtained evidence contained in the warrant supports the Commonwealth's assertion that probable cause existed to search the residence at 4125 I Street. See Affidavit of Probable Cause, 4/7/11, at 1. Specifically, the day prior to the search of the home, the officers observed one Hispanic woman travel from the 2800 block of Hope Street to the 4100 block of I Street to obtain heroin for sale. The following day, April 6, 2011, officers observed two Hispanic females leave 2802 Hope Street, enter a vehicle, and drive to I Street. Once parked, the women exited the vehicle and entered the residence at 4125. Approximately five minutes later, the women exited the home carrying a tan purse, a small black bag, and black handbag. Subsequently, the vehicle was pulled over and one of the women was observed attempting to hide the small black bag in the center console. Officers observed the tan purse on the backseat of the women's vehicle. The purse was open and the officers could see a large amount of currency inside. Shortly thereafter, a K-9 officer searched the outside of the vehicle and detected the scent of narcotics.
That the warrant does not include specific physical descriptions of the female suspect, the vehicle, or the exact addresses observed on April 5 is not fatal to the investigation. It is well-settled that
search warrants should be read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description will suffice. Our law requires only that the place to be searched must be described precisely enough to enable the executing officer to ascertain and identify, with reasonable effort, the place intended, and where probable cause exists to support the search of the area so designated, a warrant will not fail for lack of particularity.
Commonwealth v. Johnson, 33 A.3d 122, 125 (Pa.Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citations and quotations omitted).
Accordingly, we conclude that the untainted information contained within the search warrant was sufficient to establish probable cause to search the 4125 I Street residence. Thus, the suppression court erred in granting Morales's and Maitinez's motions to suppress. Therefore, we reverse and remand for further proceedings.
CONCURRING AND DISSENTING MEMORANDUM
While I agree with the majority analysis on the issues of lack of exigent circumstances, the inevitable discovery and independent source rules, and the necessity for a Hernandez analysis, I disagree that the Hernandez analysis demonstrates there was probable cause to search the I Street residence. Therefore, I respectfully dissent from that portion of the decision.
Pursuant to Hernandez, supra, we are required to examine any untainted information contained in the affidavit of probable cause to determine if there remains probable cause to support the search. Further, "[i]n determining whether a search warrant is supported by probable cause, appellate review is confined to the four corners of the affidavit." Commonwealth v. Galvin, 985 A.2d 783, 785 (Pa. 2009). Importantly, "[t]he issuing authority, in determining whether probable cause has been established, may not consider any evidence outside of the affidavits." Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003) citing Pa.R.Crim.P. 230(B). Finally, "mere suspicion or conjecture" is insufficient to support probable cause. Commonwealth v. Mazzochetti, 445 A.2d 1214, 1217 (Pa.Super. 1982). I quote the relevant portion of the affidavit of probable cause in toto:
On April 6, 2011 P/O Seigafuse #3543 and P/O Rivera #6491 assigned to the 25th District Burglary detail (25BDI) received information from the criminal intel unit that a H/F who lives in the 2800 block of North Hope Street goes to the area of 4100 block of I St. every morning between 8:00 AM and 9:00 AM to pick up heroin and then takes it back to 2800 N Hope St to sell on the block.
Based on the above information on April 7, 2011 at 8:30 AM P/O Seigafuse and P/O Rivera (25BDI) went to the 2800 [block] N Hope and set up surveillance. At 9:00 AM P/O Seigafuse and P/O Rivera observed an H/F (identified as Evelyn Vaquez) [exited] 2802 N. Hope St. and entered the driver side of a 1997 Honda Civic PA tag #HPF-2847[.] Another H/F (identified as Vanesa Casiano) walked up and entered the passenger side of the Honda. The Honda was then followed to 4125 N I St where it parked.
Evelyn Vasquez and Vanesa Casiano exited the Honda. They both entered into 4125 N I St they then exited approx 5 minutes later. P/O Seigafuse observed Evelyn Vaquez holding tan purse and a small black bag. Vanesa Casiano was observed holding a black hand bag. They both then entered the Honda. The Honda pulled off being operated by (Evelyn Vaquez) P/O Rivera and P/O Seigafuse notified uniform officer P/O Sawiki #96906 and P/O Hamilton #9496 (25TI) to pull the vehicle over.
P/O Sawiki and P/O Hamilton (25TI) followed the Honda along with (25BDI) to "A" St and Ontario St where it was pulled over for failing to use turn signal. P/O Seigafuse approached the driver and observed the driver (Vazquez)[sic] pick up a small black bag an[d] attempt to hide [it] behind the center console. At that time (Vazquez)[sic] was taken out of the vehicle and detained (Vazquez)[sic] did produce a driver lic and reg for the vehicle. The passenger was taken out of the vehicle and detained. P/O Seigafuse and P/O Rivera observed a tan purse sitting on the driver seat open with a large sum of U.S. currency inside. P/O Rivera notified (25A) Sgt Keenan #317. Sgt Keenan arrived on location and notified police radio that they need a narcotics trained K-9.
P/O Brian Quirple #5989 and K-9 Brix #568 (K9) arrived on location. P/O Quirple instructed his K-9 Brix to search the outside of the 97 Honda Pa Tag#HPF-2847 for narcotics. P/O Quirple informed the assigned that K-9 Brix #568 detected the scent of narcotics on outside of the Honda.
Affidavit of Probable Cause, 4/7/11, at 1.
The Commonwealth has argued this information provided probable cause to search the I Street residence and cites Commonwealth v. Diaz, 659 A.2d 563 (Pa.Super. 1995); Commonwealth v. Burnside, 625 A.2d 678 (Pa.Super. 1993); and United States v. Hernandez, 976 F.2d 929 (5th Cir. 1992). However, none of these cases support the argument made here that the detention of the female suspects in the car provided police with probable cause to search any location away from the arrest site.
In Burnside, a police officer who had extensive experience with drug arrests in the area, and specifically at the corner in question, witnessed the defendant in what appeared to be a drug transaction. Upon noticing the police, the suspect/seller attempted to hide the small packets in his possession and then fled the drug corner. This provided probable cause to detain the suspect. In Diaz, police obtained information from an out-of-state police department that certain individuals were travelling with U-Haul boxes that were carrying drugs. A police dog had alerted to the boxes before they left the state. A local police dog also alerted to the presence of drugs in the boxes, and men who matched the description of the suspects picked up the boxes from the baggage carousel. This provided probable cause to detain the suspected travelers. In Hernandez, a dog sniff of the outside of a car at a border crossing was determined not to be a search pursuant the 4th Amendment. This provided probable cause to search the car. None of these cases, however, addresses the instant situation. There is no indication in any of these cases that police had probable cause to do anything other than arrest the immediate subjects.
For there to be probable cause to search 4125 I Street, there must be sufficient nexus between the car stop and the residence. However, I believe the information contained in the affidavit of probable cause, as it relates to 4125 I Street, is speculative and conjecture.
The affidavit of probable cause infers, but does not state that Vazquez obtained the bags from I Street. The affidavit demonstrates that a police dog was brought to the scene and alerted to the presence of drugs somewhere within the car. However, the affidavit does not indicate where in the car the dog alerted.
While the police dog provided probable cause to believe there were drugs within the car, any further link to 4125 I Street was based upon mere suspicion. The police assumed that any drugs in the car were located in the bag and that the bag and its contents were obtained at I Street. I do not believe such conjecture provided probable cause to support police intrusion into 4125 I Street. Therefore, I respectfully dissent and would affirm the suppression of physical evidence from 4125 I Street.