Commonwealth v. GillespieCommonwealth v. Gillespie
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- Before:
- Zappala
Lead Opinion
James Gillespie challenges his conviction under
On August 8, 1999, Pennsylvania State Police received a complaint from a neighbor that appellant, a convicted felon, possessed a firearm. After verifying this information by checking appellаnt’s criminal record, two uniformed officers interviewed the neighbor at his apartment, across the hall from appellant’s residence. The neighbor stated he had seen appellant with a gun earlier that day.
At approximately 10:23 p.m., police knocked on appellant’s door. When his wife answered, the officers asked to speak with appellant; she allowed the officers to enter. Inside, appellant, his wife, and two other people were present. The officers informed appellant about the complaint against him and invited him to discuss it outside. Appellant told the officers they could speak to him where they were. The officers told appellant there was a complaint he had been carrying a firearm earlier in the day, and asked if there was a firearm in the residence. Appellant, “[i]n a loud, vulgar manner,” stated it was none of the officers’ business whether he had a gun or not. N.T., 3/17/00, at 10. The officers then asked if they could search the residence. Appellant responded “not without a warrant,” and told the officers to leave. One officer described Appellant’s conduct as “violent and belligerent.” Id.
The officers told appellant they were going to have to ask him, his wife, and his guests to leave the residence so the officers could secure it while a warrant was sought. Appellant “jumped up and started yelling and pointing his finger at [one officer’s] face.” Id., at 11. In response, the officer handcuffed him, and repeated he was going to get a warrant. With that, appellant stated there was a loaded gun in the bedroom. The other officer went to the bedroom and found a loaded 12-gauge shotgun with a 24-inch barrel just inside the door.
Appellant was charged with violating
Section 6102 has a more restrictive definition of “firearm”: [sjubject to additional definitions contained in subsequent provisions of this subchapter which are applicable to specific provisions of this subchapter, the following words and phrases, when used in this subchapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
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“Firearm.” Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a fireаrm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable.
Appellant argues the Commonwealth did not prove his weapon was a “firearm,” because his shotgun’s barrel alone was 24 inches; under
Appellant relies upon Commonwealth v. Todd, 477 Pa. 529, 384 A.2d 1215 (1978), in which this Court held barrel length was an essential element of the offense defined in
In 1995, however, the General Assembly amended the Act.
The current version of
[Highlights of this crime control proposal are as follows: It expands the categories of persons who commit a crime if they possess, use, control, sell, transfer, or manufacture any firearm, long or short, to include persons convicted of a range of violent or potentially violent crimes____
Legis. J. House Special Session No. 1 (Pa. June 5, 1995), at 286 (emphasis added).
The broader definition of “firearm” in
The definition of “firearm” in
Appellant next argues the trial court erred when it rеfused to suppress the shotgun. Voluntary consent to search is an exception to the general rule that a warrantless search of a residence is per se unreasonable. Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203, 206 (1994). When evaluating voluntariness of consent, the totality of the circumstances must be evaluated. Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 901 (2000). While there is no hard and fast list of factors evincing voluntariness, some considerations include: “1) the defendant’s custodial status; 2) the use of duress or coercive tactics by law enforcement personnel; 3) the defendant’s knowledge of his right to refuse to consent; 4) the defendant’s education and intelligence; 5) the defendant’s belief that no incriminating evidence will be found; and 6) the extent and level of the defendant’s cooperation with the law enforcement personnel.” Commonwealth v. Cleckley, 558 Pa. 517, 738 A.2d 427, 433 n. 7 (1999).
Appellant contends his consent was coerced by the officers.1 When the officers arrived, appellant’s wife admitted them voluntarily. Appellant was clearly aware of his rights, knew he could refusе consent to search, and in fact did refuse. There clearly was nothing coercive to this point, for the mere presence of police is not coercion.
Legitimate police activity can hardly be coercion. By his belligerence, appellant talked himself into being handcuffed in order to secure him and the premises until a warrant could be obtained. The police did not try to bully him; it was the other way around. The fact he spontaneously blurted out the shotgun’s location was not in response to any police threats or coercive tactics.
Appellant argues Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) is applicable. In Bumper, the United States Supreme Court held consent to search a residence is invalid where it is given in response to police misrepresentation concerning the existence of a valid search warrant. Here, the officers merely stated they would get a warrant, not that they already had a warrant. This is not a case where police tried to coerce consent by threatening to get a warrant they otherwise could not get; based on the information from appellant’s neighbor and the background check of appellant’s criminal record, the officers had good reason to believe a convicted felon had a firearm there. See Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985) (adopting probable cause test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983): probable cause exists if there is fair probability that contraband or evidence of crime will be found in particular place). The officers simply responded to appellant’s initial refusal of consent with an accurate assessment of the situation: sincе appellant insisted on a warrant, they would have to secure the premises while a warrant was sought. Respecting appellant’s rights does not comprise coercion.
The officers’ request that appellant leave his home so it could be secured while they obtained a warrant is another factor which must be evaluated in examining the totality of the circumstances surrounding appellant’s consent. The United Stаtes Supreme Court has held if probable cause exists to support the issuance of a warrant, police may secure the residence of an individual by having him wait outside his home to preserve the loss of evidence while a warrant is diligently sought. See Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001).
In McArthur, police had probable cause to believe the defendant had drugs in his home, but no warrant. The defendant refused the officers entry when they knocked on his door, but came out оnto the porch to speak with them. He was told by the officers that he could not reenter his home unless accompanied by an officer; he went back in several times to obtain cigarettes and use the phone, each time being observed by an officer standing in the doorway. Two hours later, officers returned with a warrant, searched the home, and found drugs and paraphernalia. The defendant moved to suppress thе evidence, and the trial court granted the motion. The Appellate Court of Illinois affirmed.
Here, unlike McArthur, the officers never actuаlly restricted appellant’s access to his home, for upon being told he would have to go outside while police obtained a warrant, appellant became belligerent, then blurted out the location of the weapon. While the Fourth Amendment permits the type of temporary seizure of the home at issue in McArthur;2 Article I, § 8, the Pennsylvania Constitution’s counterpart to the Fourth Amendment, “may be employed to guard individual privacy rights against unreasonable searches and seizures more zealously than the federal government does under the Constitution of the United States.” Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254, 1258 (1989); see also Commonwealth v. Mason, 535 Pa. 560, 637 A.2d 251, 256 (1993) (purpose of exclusionary rule under Fourth Amendment is to deter police misconduct; purpose of exclusionary rule under Article I, § 8 is to protect implicit right to privacy in Pennsylvania); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). Therefore, we must examine whether the officers’ conduct violated Article I, § 8.
We conсlude that, under the circumstances in the present case, the officers’ acts were not unreasonable under the Pennsylvania Constitution. As we have already stated, the officers had good reason to believe appellant had a firearm in his home, and although this evidence was not as readily destructible as drugs, there was the more significant danger that appellant, in his agitated and violent state, could use the weaрon. Therefore, telling appellant he would have to step outside until a warrant could be obtained was reasonable, to ensure the safety of the officers and the others in the home, and in the building. This was not a coercive tactic designed to procure appellant’s consent; rather, it was a reasonable reaction to the aggressive behavior of a person suspected of illegally possеssing a firearm.
The officers did not restrain appellant in order to coerce his consent; at this point, cooperation was clearly not in the cards, and asking him to leave and cuffing him could hardly be designed to inspire that cooperation. While appellant was restrained, the officers did not question him; they merely reiterated the premises had to be secured until a warrant was obtained. Appellant spontaneously stated the loaded gun was in the bedroom, which the officers reasonably understood as the grant of permission to enter that room and seize the gun. The fact appellant reacted in a way
Finally, the fact appellant knew the gun would eventually be discovered if a warrant was obtained does not vitiate his consent. This Cоurt has rejected the argument that consent is involuntary simply because it is given at a time when the defendant knows a search will produce evidence of a crime. See Strickler, at 901 (reasonable person standard presupposes an innocent person).
Thus, after assessing the totality of the circumstances, the suppression court did not err when it found appellant voluntarily gave the officers permission to search his bedroom for the firearm.
Judgment of sentence affirmed.
Former Chief Justice ZAPPALA did not participate in the decision of this case. Justice NIGRO files a concurring and dissenting opinion. Justice SAYLOR files a concurring and dissenting opinion in which Chief Justice CAPPY joins.Notes
. In his reply brief, appellant expands his challenge by alleging he was unlawfully seized by the police. Given his belligerent behavior and the crime involved, we cannot find that restraining appellant was unreasonable, much less unlawful; this restraint is only relevant as it impacts the evaluation of the voluntariness of his consent. Even if restraining appellant was the functional equivalent of an arrest, no single fact has talismanic significance, and custody alone does not render consent involuntary. Commonwealth v. Smith, 470 Pa. 220, 368 A.2d 272, 277 (1977).
. See also Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (“We hold, therefore, that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.”).
Concurrence Opinion
CONCURRING AND DISSENTING.
Like Justice Saylor, I join the majority’s disposition on the issue involving the definition of a firearm under
In reaching its сonclusion that the officers’ ordering of Appellant to leave his home was reasonable, the majority cites to Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), which it contends stands for the broad proposition that “if probable cause exists to support the issuance of a warrant, police may secure the residence of an individual by having him wait outside his home to preserve the loss of evidence while a warrant is diligently sought.” Slip Op. at 7. Importantly, howevеr, McArthur involved a situation where the police prevented an individual from re-entering his home in order to prevent the destruction of evidence. Here, in contrast, the police were inside Appellant’s home—despite the fact that they had no warrant and, by this point, had been instructed by Appellant to leave—when they told Appellant that he would have to leave his own home so that they could secure a warrant. Indeed, McArthur itself implicitly recognizes the difference between a situation such as this, invоlving police action inside a home, and the situation presented by McArthur, where the police action occurred solely outside the home. See id. at 333-36, 121 S.Ct. 946. See also Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (searches and seizures in public places are treated differently than those occurring inside the home).
In my view, once Appellant instructed the police to leave his home, the police no longer had any right to be in Appellant’s home, and certainly had no right to order Appellant to leave his home while the police sought out a warrant. By holding otherwise, the majority turns on its head the long-standing precedent of this Court that the sanctity of the home is “the place deserving the utmost protection pursuant to the Fourth Amendment.” Commonwealth v. Gindlesperger, 560 Pa. 222, 743 A.2d 898, 902 (1999);
Concurrence Opinion
CONCURRING AND DISSENTING.
I join the majority opinion’s analysis and disposition оn the issue involving the definition of a firearm under
In this regard, I depart from the view that the presence of police and legitimate police activity, specifically, securing the premises and plaсing Appellant in custody, do not implicate a coercive dynamic. Indeed, the Court has acknowledged that there is an element of coercion that exists in non-custodial interactions between law enforcement officers and citizens. See Commonwealth v. Strickler, 563 Pa. 47, 73, 757 A.2d 884, 898 (2000) (citing Commonwealth v. Jones, 474 Pa. 364, 371-72, 378 A.2d 835, 839 (1977)). Such element is enhanced when coupled with custody. See id.; see also Commonwealth v. Smith, 470 Pa. 220, 228, 368 A.2d 272, 277 (1977) (recognizing that “[c]ustody, while not determinative in itself, places a heavy burden in showing consent was voluntarily given” and noting that “custоdy when coupled with other coercive factors[,] will normally necessitate the conclusion that the consent is not effective”). Of additional significance, in this case, the police stated that they were going to obtain the search warrant and ordered everyone to leave the residence. While these circumstances do not necessarily render Appellant’s consent involuntary,1 in my view, when coupled with сustody, they should be accorded significance within the totality assessment.
At the same time, as the majority notes, there exist certain non-coercive circumstances, such as, the fact that the interaction with police occurred in Appellant’s home, that he was aware of his right to refuse consent and, indeed, initially exercised such right. In addition, I would also distinguish the detention of Appellant in this case from those instances where the consent to search follows custody occurring in connection with a traffic stop, see, e.g., Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000), or in the context of narcotics interdiction at an airport, see, e.g., Commonwealth v. Mack, 568 Pa. 329, 796 A.2d 967 (2002) (plurality opinion). Here, the detention would not have occurred but for Appellant’s belligerent behavior. Nevertheless, on this record, I cannot conclude that the consent resulted from an essentially free and unconstrained
. See generally 3 Wayne R. Lafave, Search and Seizure. A Treatise on the Fourth Amendment, § 8.2(c), at 651-54 nn. 74-88 (collecting cases and explaining that a threat to obtain a search warrant is not per se coercive).