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Commonwealth v. Santiago

Superior Court of Pennsylvania

April 20, 2017


         Appeal from the Order Entered March 18, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000903-2015

          BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.


          BENDER, P.J.E.

         The Commonwealth appeals from the order granting Appellee's, Angel Santiago, motion to suppress the in-court and out-of-court identification testimony of a police officer who, in violation of the Fourth Amendment to the United States Constitution and Article 1 § 8 of the Pennsylvania Constitution, conducted a warrantless search of Appellee's cell phone in order to ascertain his identity. The Commonwealth argues that a defendant's identity is never suppressible, and that, as a result, eyewitness identification testimony is, categorically, never suppressible. After careful review, we affirm in part, and reverse in part.

         The suppression court summarized the relevant facts of this case as follows:

On July 31, 2014, at approximately 6:50 pm, Police Officer Paul Sanchez was on foot patrol with his partner in the area of the 3500 block of Randolph Street, Philadelphia. At that time, he observed a Mitsubishi Galante operating with a heavy front windshield tint in violation of the Pennsylvania Motor Vehicle Code. Unable to observe anyone inside the vehicle, he indicated for the vehicle to stop and pull over by waving it down. The driver complied, and lowered the driver's side window as Officer Sanchez approached the car on that same side. Officer Sanchez testified that he believed that no one else was out on the street at that time, and that the driver appeared to be nervous and avoided eye contact. Officer Sanchez then asked the driver for his license, registration, and insurance. The driver replied that he had no license.
Approximately one to two minutes elapsed during this entire exchange in which Officer Sanchez observed the driver's body and his mannerisms. In response to the driver's assertion that he did not have a license, Officer Sanchez instructed the driver to turn off the vehicle. The driver did not comply with this request. Instead, he began to reach into the center console area of the vehicle. Officer Sanchez reacted by extending his arm through the open automobile window and then grabbing the driver's arm to prevent him from retrieving anything from inside the center console area. As soon as Officer Sanchez secured the driver's arm, the driver accelerated on the gas pedal with half of the officer's body still inside the car, pulling away from the location of the stop. The driver ignored Officer Sanchez's repeated requests to pull over and stop the vehicle. As the driver continued to flee, Officer Sanchez released his grip on the driver, and launched himself off of the moving vehicle and onto the road. At some point while separating himself from the vehicle, the rear tire ran over Officer Sanchez's right foot. He later went to the hospital for an injury to his foot. During this encounter, Officer Sanchez was never able to ascertain the name or identity of the individual who was driving the aforementioned vehicle.
Moments after his initial encounter, Officer Sanchez and other officers returned to the location of the initial stop where Officer Sanchez's interaction had occurred. At that location, the police officers noticed a cellular phone (a "cell phone") on the ground of the highway. Officer Sanchez picked it up, and then he proactively opened the cell phone and accessed it without a search warrant to ascertain the identity of the individual who owned the phone.

Information for only two named individuals (hereinafter "contacts") was found in the cell phone. The first one was "Angel Santiago, " and the second was labeled "My Babe." Officer Sanchez also testified that he, along with detectives, called the contact listed as "My Babe" with the contact's number as listed in the recovered cell phone, but no one answered. Neither of the names of these contacts was immediately displayed when the officer opened the cell phone. To the contrary, the officer affirmatively navigated through the phone and selected the necessary functions until the contacts appeared on the screen. In the instant case, Officer Sanchez and the detective further accessed the cell phone by selecting the features that directed them to the names and phone numbers of the two listed individuals contained in it.

On that same day, the assigned detective ran a search of the name Angel Santiago, recovered from the cell phone, through the National Crime Information Center (commonly referred to as "NCIC") criminal database, a system available to law enforcement agencies, containing the names of and information related to individuals who have been arrested. The detective specifically ran a search related to individuals named Angel Santiago living in Philadelphia. As a result of this NCIC search, a prison release photograph was obtained of this [Appellee]. The photograph was obtained as a result of the search of the name found in the cell phone. When the detective showed Officer Sanchez the photograph, he immediately recognized [Appellee] and identified [him] as the driver of the vehicle which had been stopped and who later assaulted him. Officer Sanchez was also interviewed by one of the detectives regarding the incident. Based on Officer Sanchez's positive photographic identification and the information he provided to the detective during his police interview, an arrest warrant was then issued for [Appellee], Angel Santiago.

Suppression Court Opinion ("SCO"), 7/18/16, at 1-3 (internal citations omitted).

         In a criminal information filed on February 3, 2015, the Commonwealth charged Appellee with simple assault, aggravated assault, recklessly endangering another person, and fleeing or attempting to elude a police officer.[1] On December 29, 2015, Appellee filed an omnibus pre-trial motion seeking, inter alia, suppression of any in-court or out-of-court identification testimony, arguing that such testimony by Officer Sanchez was the fruit of the poisonous tree stemming from his unconstitutional search of Appellee's cell phone. A suppression hearing occurred on February 19, 2016, at which time Officer Sanchez was the sole witness to testify. On March 18, 2016, the suppression court granted Appellee's suppression motion. The Commonwealth filed a motion for reconsideration, which was denied on March 24, 2016.

         The Commonwealth filed a timely notice of appeal on April 14, 2016, and preemptively filed a Pa.R.A.P. 1925(b) statement on the same day. In its Rule 1925(b) statement, following a brief recounting of the factual background of this case, the Commonwealth stated its claim as follows: "Did the lower court err in suppressing the officer's in-court and out-of-court identifications of [Appellee] on the ground that he should have obtained a warrant before obtaining [Appellee]'s name from his cell phone." Commonwealth's Rule 1925(b) Statement, 4/14/16, at 1 (single page). The suppression court issued its Rule 1925(a) opinion on July 18, 2016.

         The Commonwealth now presents the following question for our review: "Did the [suppression] court commit an error of law when it deemed [Appellee]'s identity suppressible fruit of an unlawful search?" Commonwealth's Brief at 3.

In reviewing an appeal by the Commonwealth of a suppression order, we may consider only the evidence from the appellee's witnesses along with the Commonwealth's evidence which remains uncontroverted. Our standard of review is restricted to establishing whether the record supports the suppression court's factual findings; however, we maintain de novo review over the suppression court's legal conclusions.

Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010).

         Instantly, the Commonwealth does not dispute the suppression court's ruling that the search of Appellee's cell phone was unconstitutional. See Commonwealth's Brief at 6 n.1. Thus, our review in this case is limited to the scope of the suppression remedy afforded to Appellee as a result of that unconstitutional search. Based on that unconstitutional search, Appellee sought suppression of two categories of testimonial identification evidence by Officer Sanchez. First, the "out-of-court" identification testimony would consist of Officer Sanchez's testifying at trial about his identification of Appellee from the photo he discovered in the NCIC criminal database. Second, the "in-court" identification testimony would consist of Officer Sanchez's identifying Appellee, in court, as being the person whom the officer observed at the scene of the crime. The trial court granted suppression with respect to both categories. On appeal, the Commonwealth argues that "the fruit of the poisonous tree doctrine … has no application to eyewitness identifications. Neither a defendant's face, nor a witness's independent memory of that face from the crime, is suppressible." Commonwealth's Brief at 8.[2]

         As will be addressed below, the import of much of the applicable case law in this matter is in dispute. Accordingly, we will address those disputes as they arise in our narrative of the jurisprudence that applies to this case.

         In Wong Sun v. U.S., 371 U.S. 471 (1963), in a majority opinion authored by Justice Brennan, the Supreme Court of the United States defined the purpose and general scope of the exclusionary rule, and the related fruit-of-the-poisonous-tree doctrine, as follows:

In order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person, … this Court held nearly half a century ago that evidence seized during an unlawful search could not constitute proof against the victim of the search. Weeks v. United States, 232 U.S. 383');">232 U.S. 383 [(1914)]. The exclusionary prohibition extends as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, 251 U.S. 385');">251 U.S. 385 [(1920)]. Mr. Justice Holmes, speaking for the Court in that case, in holding that the Government might not make use of information obtained during an unlawful search to subpoena from the victims the very documents illegally viewed, expressed succinctly the policy of the broad exclusionary rule:
The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.
[Id.] at 392[.]

The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U.S. 505 [(1961)], that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of 'papers and effects.' Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. McGinnis v. United States, … 227 F.2d 598');">227 F.2d 598 [(1st Cir. 1955)]. Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion. See Nueslein v. District of Columbia, … 115 F.2d 690 [(D.C. Cir. 1940)]. Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence. Either in terms of deterring lawless conduct by federal officers, Rea v. United States, 350 U.S. 214');">350 U.S. 214 [(1956)], or of closing the doors of the federal courts to any use of evidence unconstitutionally obtained, Elkins v. United States, 364 U.S. 206');">364 U.S. 206 [(1960)], the danger in relaxing the exclusionary rules in the case of verbal evidence would seem too great to warrant introducing such a distinction.

Wong Sun, 371 U.S. at 484-86 (footnote omitted).

         Eyewitness identifications have at least sometimes been the subject of suppression under the fruit-of-the-poisonous-tree doctrine. In Gilbert v. California, 388 U.S. 263 (1967), for instance, the defendant was subjected to an illegal line-up which had violated his Sixth Amendment right to counsel. Multiple witnesses testified both as eyewitnesses to Gilbert's crimes, and also regarding their identification of Gilbert at the illegal line-up. Thus, like here, there were at issue in Gilbert both out-of-court identifications that were the direct result of unconstitutional conduct, and in-court identifications stemming from observations made at the scene of the crime, prior to the unconstitutional conduct. The Gilbert Court ruled:

The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. United States v. Wade, [388 U.S. 218 (1967)]. We there held that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup. However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the in-court identifications had an independent source, or that their introduction in evidence was in any event harmless error.
Quite different considerations are involved as to the admission of the testimony of the manager of the apartment house at the guilt phase and of the eight witnesses at the penalty stage that they identified Gilbert at the lineup. That testimony is the direct result of the illegal lineup 'come at by exploitation of [the primary] illegality.' Wong Sun[, ] 371 U.S. [at] 488…. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup.

Gilbert, 388 U.S. at 272-73 (footnotes omitted).

         Thus, the Gilbert decision strongly suggests that, regarding both in-court identifications and testimony regarding out-of-court identifications, such identity-related testimonial evidence is potentially suppressible. Moreover, Gilbert suggests that identification testimony which is made possible only as a direct result of unconstitutional conduct should be suppressed to deter police exploitation of such conduct (in Gilbert, this was the testimony by witnesses about having identified Gilbert in the unconstitutional line-up). However, the Court also held that the state should be afforded the opportunity to prove that the in-court identifications (based on direct observations of the criminal conduct), were admissible if such testimony was 'untainted' by the unconstitutional acts, by showing an independent source for such testimony.[3] Thus, the Gilbert decision appears to implicitly reject the theory proffered by the Commonwealth today (that eyewitness testimony is never suppressible).

         Thirteen years later, the United States Supreme Court issued United States v. Crews, 445 U.S. 463 (1980). In Crews, the perpetrator robbed and assaulted a victim at gunpoint, and the victim thereafter gave a full description of the culprit to the police. Several days later, police officers saw the defendant, who matched the description provided by the victim, near the scene of the crime. Police arrested him under false pretenses (alleging truancy), and then questioned and photographed the defendant while ...

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