*1 reversed, re- the case is Judgment of sentence for a trial. manded new
ROBERTS, result. J., concurs O’BRIEN, JJ., dissent. EAGEN de- consideration or J., participate in the NIX, did not this case. cision of Pennsylvania
COMMONWEALTH Appellant. KNOWLES, Deramus Pennsylvania. Argued May 3, 1974. 16, 1974.
Decided Oct. unhelpful superfluous are time. and therefore and waste Wigmore § 1918.” *2 Chief, .Packel, Ziccardi, Defender, John W. Vincent J. Assn, F. Anne Appeals Div., Philadelphia, Defender *3 appellant. Johnson, Philаdelphia, for A. Atty., Richard Fitzpatrick, F. Emmett Dist. Richman, Asst. Atty., Sprague, First Dist. David Asst. appel- Appeals Div., Atty., Dist. Chief, Philadelphia, lee. O’BRIEN, ROB- JONES, EAGEN, J., and
Before C. MANDERINO, POMEROY, J J. ERTS, NIX THE COURT OPINION OF ROBERTS, Justice. codefendant, Thom- Appellant and a Deramus Knowles narcotics
as convicted of Meadows, were imprison- years and each was to two five sentenced separately seasona- filed ment. Pretrial defendants both denied. suppress; motions were ble motions bоth 26, 1961, Act, September Drug, 1. The and Cosmetic Act of Device 1664, 4, 780-4, amended, § Sub- § The Controlled P.L. 35 P.S. as Act, stance, April P. Drug, Device and Act Cosmetic 1-44, (Supp. §§ §§ L. P.S. 780-101 to 780-144 No. 1974). Sep- guilty. Jointly nonjury, both men found tried Superior appeals were taken to Court. arate ev- Superior that certain appeal Court held Meadows’ against objection defendants both idence introduced over granted a suppressed; was should have been Meadows Pa.Super. Meadows, 222 new Commonwealth trial. 1972). (June Commonwealth appeal. not seek did an allowance of cases, Despite of the two the identical circumstances appellant’s days affirmed Court six later opinionless judgment by order. per curiam sentence Knowles, 706, 291 A.2d petition (June 1972). appellant’s granted We appeal.2 Fourth for allowance of On basis and article Amendment to the United States Constitution P.S., Constitution, we Pennsylvania section 8 of the remand for trial. a new car,
Appellant
sitting
the wheel
while
behind
by
stopped
parked
Philadelphia,
Street
Green
May
policeman
approximately
onm.
11:15 a.
stopped ap-
At trial the
testified that he
1970.4
officer
seeing
suspicion
pellant
been
because his
had
aroused
appellant exit and
another man across the street
quickly
building.
stated
The officer further
reenter a
questioned appellant
sit-
he
because
ting slumped down in the driver’s
When
seat.
Appellate
July
Act of
Jurisdiction Act
II, 204(a),
211.204(a) (Supp.1974).
§
§
P.L.
P.S.
art.
*4
I,
IV, XIV;
analysis
§
Our
art.
8.
U.S.Const.
Pa.Const.
amends.
applicable
equally
to the
con-
state
Fourth Amendment
provision.
stitutional
stop
disposition
In
whether the
view of
need not decide
our
was
we
Ohio,
appellant
Terry
constitutionally permissible.
v.
(1968); Commonweаlth
392 U.S.
v.
was he asked what was he he that was waiting Meadows, for who the man the officer had point, earlier At noticed. over Meadows was called police. words, the a After a few officer wrestled paper bag inside, looked and discovered appellant Both then narcotics. Meadows and were arrested.5 appellant
So searched, that direct- could officer place ed him top his hands on When car. ciga- officer went handcuff he discovered a appellant, package rolled-up rette top and a car dollar bill on appellant’s right where bill hand had the dollar been. quantity was minute of narcotics. patrol appellant wagon
A Mead- arrived and both and police headquarters. Upon ows taken to arres- were telephone receipt exit, keys tees’ and discovered were wagon. At trial Commonwealth established belonged that these to Meadows. day ob- upon the seized,
Based evidence police premises tained a Street search warrant for Green leav- entering from which had been seen and Meadows ing. more This search revealed narcotics. again only upon the evi-
Immediately thereafter appellant’s seized, dence warrant for thus far a search there, al- residence was No narcotics found issued. circumstantially though in- uncovered was some dicating present the Green had been premises. Street against both at trial
All introduced this evidence was objection admis- to its defendants. Each reasserted post-trial sion at trial and in motions. Meаdows, 222
In Commonwealth v. frisk (1972), held that considering necessity disposition 5. Our also obviates Reece, A. light Pa. of Commonwealth v. whether in 2d 463 properly arrested possessed by Meadows. narcotics held
75
paper
appellant’s codefendant and the seizure of the
Terry
bag
comport
requirements
did not
1868,
Ohio,
392
88
and Commonwealth
434
A.2d
Pa.
253
276
(1969).6
Therefore, Meadows was
to be entitled
held
improperly
suppression
a new trial because the
court
suppress
him on the
failed to
from
the contraband seized
See
street and the
unlawful
seizure.
“fruits”
of this
Wong
States,
9
Sun v. United
U.S.
83 S.Ct.
371
Cephas,
Pa.
(1963);7
L.Ed.2d
447
(1972).8
Superior
held
The
patrol wagon9
in
evidence found abandoned
pursuant
were
and the contraband seized
to the warrant
primary illegality.
both “fruits” of the
appeal
this decision
Commonwealth took no
Instead,
and does not now
its correctness.
Johnson,
Commonwеalth v.
“ ‘whether, granting
Wong
es-
rule enunciated in
Sun asks
in-
primary illegality,
tablishment of the
stant
illegality
to which
the evidence
objection
exploitation
by
made has been come at
sufficiently distinguishable to be
or instead
means
”
States,
purged
primary
Wong
United
Sun v.
taint.’
471, 488,
407, 417,
(quoting J.
(1963)
U.S.
L.Ed.2d
Maguire,
(1959)).
United
Evidence of
See Nardone v.
Guilt 221
(1939);
Silver-
However, the Commonwealth to disposition appellant’s different of Meadows’ and cases theory standing on the that the instant has no concededly to assert the con uncоnstitutional seizure position fully This traband. fails to account for Jones 257, United States, 725, 362 U.S. L.Ed.2d (19.60). held,
In Jones, Supreme the of the States Court alia, standing inter that in order to assert to have possesso violation, Fourth Amendment once accused of a ry crime required is not to an interest assert premises property searched or the seized. This give See, g., has not hesitated effect Jones. e. 343, Weeden, Commonwealth v. 436, Pa. A.2d 1, (1974)10; 349-351 Cоmmonwealth v. Pa. Dembo, 451 7, Rowe, (1973); 301 A.2d Commonwealth v. (1969) (Opinion Support 433 Pa. in joined by Roberts, Affirmance) J., & (Eagen, O’Brien JJ.); Platou, cf. Commonwealth v. 455 Pa. denied,
29 (1973), cert.
94 S.Ct.
L.Ed.2d 1146
Weeden,
In Commonwealth v.
322 A.2d
J.,
Jones,
J.)
Eagen
Pomeroy,
(joined
Mr. Justice
C.
application
v. Unit-
majority’s
dissented from
of Jones
the Weeden
ed
How-
362 U.S.
80 S.Ct.
In an Justice Frankfurter explained aspect this its decision Jones. persuaded by are consideration: to hold “[W]e contrary, petitioner’s is, to hold that failure to acknowledge premises interest the narcotics or prevented per- upon search, his attack be to would mit advantage contra- Governmеnt to have the dictory positions as a Petition- basis for conviction. possession er’s conviction flows from narcot- at the time ics fruits of that Yet the search. search, upon ad- which the depends, conviction ground petitioner into mitted did not have time. at that narcotics prosecution subjected here *7 thus the defendant penalties possession meted out to one in while lawless refusing designed in that sit- him the remedies for one put It amenities, not consonant with the to uation. is mildly, justice it to criminal administration of squarely of contradictory sanction such assertions power by the Government.” 263-264, too,We,
362 U.S. at at find this 732.11 S.Ct. compelling. reasoning
11. sought States, Supreme Another in by evil to be remedied Court 725, Jones v. United 4 L.Ed.2d 362 U.S. 80 S.Ct. (1960), has seeking comply was that “a what defendant to with requirement been the lege al- standing conventional forced to been has proof tend, facts the be suffi- which if indeed not would cient, 261-262, This to 731. convict him.” Id. at at S.Ct. problem States, was United corrected in Simmons v. another fashion There, 390 U.S. 88 S.Ct. 19 L.Ed.2d Supreme Court held that suppress support “when a defendant testifies in of a motion to may testimony grounds, evidence on Fourth Amendment against not guilt thereafter admitted him at on the issue of trial objection.” unless he makes no Id. at 88 S.Ct. at adopted supervisory powers, Pursuant a to our has this Court 323(h) giving rule proscription. effect to this constitutional Rule Procedure, Appendix, provides of our Rules of in Criminal 19 P.S. pertinent part: may testify hearing “The defendant a motion at such [on suppress evidence obtained in violation of his constitutional and, so, rights], right thereby if he does he waive his does not during to remain silent trial.” charged
The
in
sole crime
the indictment of
Supreme
possession
of narcotics.12
theAs
Jones,
said in
“In
indictment
itself
cases where the
charges possession,
very
is
real sense
defendant
a
‘person aggrieved by
search
revealed as
an unlawful
upon
suppress
prior to
seizure’
and
motion
Al
trial.”
at
362 U.S.
80 S.Ct.
732-733.13
States,
derman v. United
89 961, 22
L.Ed.2d
Brown v.
United
411 U.S.
(1973),
Common-
possessory
208
wealth’s reliance on
did
and
not
crime
involve a
Brown, the Su-
mark.
it is wide
preme Court
it
deemed
a search
standing
“sufficient
to contest
hold that there is nо
where,
here,
(a)
and
seizure
as
the defendants:
seizure;
premises
(b)
the time
contested search
premises; and
proprietary
had no
possessory
or
interest
includes,
(c)
an es-
as
charged
were not
an offense that
seized
possession
charged,
sential element of the offense
evidence at
and seizure.”
the time of the
search
contested
Id. at
the evidence so must obtained Like in Commоnwealth opinion we are that contraband pursuant premises from seized the warrant suppressed. leaving must be Meadows was seen compel First, the evidence Two reasons once this result. supporting illegally affidavit seized is removed plain there warrant, it is Green Street search justify the war probable sufficient cause Second, with warrant rant’s issuance. the search illegality. fruit primary of a illegal holding standing has to assert Our harmony seizure of contraband from Meadows Pre-Arraignment Proce- American Model Law Institute’s Code (Official 1972). generally § 290.1(5) No. White dure Draft Seizure, Object U. Greenspan, Standing & Search and Pa.L.Rev. 333 *9 80 consideration, set
As for the first the law illegally does that “the inclusion of evidence tled obtained validly otherwise a search warrant which vitiate upon probable issued cause reflected in the affidavit proper-sources.” Sterling, based on United Statеs v. (3d 1966); Cupp, 427 F.2d Howell v. Cir. Thomas, (9th 1970); v. F.2d Commonwealth Cir. (1971). The Pa. 282 A.2d 699-700 illegally evi equally if obtained converse is well settled: warrant,15 in an a dence is affidavit for search included cause, determining probable it must not considered in be allegations affidavit must contain valid —other prompted by illegality than those official —sufficient Stoner, probable establish United States v. cause. Nelson, 1973); (6th F.2d United v. States Cir. Mead (6th 1972); Commonwealth Cir. F.2d cf. ows, conceivably case, only
In this information placed in affidavit for search could have been poisonous tree.” “fruit of the warrant tainted as was allegations independent primary ille- Because no gality produced, without the warrant was issued probable cause. Hoffman, reasoning Judge agree also
We Commonwealth writing premises Meadows, that of the Green Street search illegality. primary a the fruit of supra, Wong it held “In Sun v. exploitation ille- by was come sufficiently distinguisha- gality by than means rather poisonous tree’ purged ‘fruit of the ble to be of taint is lapse suppressed. time between and must be Here the illegal stop seizures and frisk and various supported may now warrant Probable cause for Milliken, 450 Pa. testimony. sworn oral However, oral (1973); sworn 300 A.2d testimony Pa.R.Crim.P. before the issuance must be reduced to an affidavit 2003(a). Pa.R.Crim.P. warrant. *10 thirty min- exceptionally short. Within case was appellant’s] the Green arrest utes of [Meadows’ offi- and the obtained, search been Street warrant had conduct proceeded had Street cers Green presence. search in The Commonwealth [Meadows’] illegal stop and shown has no ‘attenuation’ between residence, nor has frisk and the search of [Meadows’] independent origin it an for the evidence found shown apartment.” in the at A.2d at 368. equal two-pronged analysis applies force to
This appel- pursuant the search to a warrant conducted immediately after lant’s residence. This occurred legally premises. ob- the search of the No Green Street supported affidavit; it lacked tained evidence thus origin probable independent No attenuation or cause. demonstrated, having been likewise fruit this search was primary illegality. of a a result Evidence seized as suppressed. that search have should been order of the is Court reversed. judgment Philadelphia sentence Com- granted appellant mon is trial. Pleas vacated and a new JONES, J.,C. concurs the result. concurring opinion
POMEROY, in which J., filed EAGEN, joins. J., (concurring).
POMEROY, Justice
police
My review of the evidence
me that the
satisfies
making
stop
investigatory
their initial
Ohio,
grоunds
Terry v.
lacked sufficient
so under
do
20 L.Ed.2d
Terry,
laid down this
States
justi-
objective
stop
determining
standard for
when a
fied,
probable
an arrest:
even in
cause for
the absence of
“.
.
.
available to the officer at
would
facts
a man
moment of the seizure or
search ‘warrant
taken
the action
reasonable caution in the belief’
21-22,
appropriate?”
88 S.Ct. at
Virtually
did
all that
As
text, supra,
inequitable
correct-
dilemma which Jones
possessory
by according standing
ed
to one who had no
in Simmons
United
interest was resolved
In Sim-
U.S.
L.Ed.2d 1247
testimony
mons, it
held that a defendant’s
relative
possessory
given
evidence,
to es-
interest
in the seized
standing
object
tablish his
seizure could
against
thereafter
recent
be used
him at trial.
case of Brown
United
93 S.Ct.
U.S.
Burger,
The clear the issue of Brown that when properly disposed it, may before standing. dispense concept with the of “automatic” g., (6th e. Dye, Cir. States Cr.L. *12 upon 8/22/74). heavy For reliance reason, is, think, Jones I questionable venture wisdom. point my aside, however,
That
the evidence
review of
here,
inapplicable
convinces me that
the Jones rule is
charged
possession
since
not
Knowles was
with the
illegal
heroin
from
his
obtained
search of
co-defendant,
a result of the
but
obtained as
apartment
he
which
himself and an
over
apparently
charged
The indictment
exercised control.
County,
May 18,
Philadelphia
that “on or
in
about
possession and
feloniously
Deramus Knowles
in
had
drug:
under his control a
Heroin
certain narcotic
admits,
Cocaine.” As the
in
brief
its
simply
support
there was
no direct
which would
controlled
possessed inference that Knowles
an
heroin
from Meadоws.
seized
its
Supreme
explained
supra,
Simmons,
when,
thusly:
held that
“.
.
.we
decision in Jones
an
possession
evidence is itself
Jones,
in
seized
as
defend
of the offense with which
essential element
deny
precluded from
charged, the
ant is
Government
requisite possessory inter
ing that
defendant has the
of the evidence.”
est to
the admission
Since
Submitted Decided Oct.