Commonwealth v. Lapia

reasons for decision, its so that on any further appeal we may decide whether it has acted within its discretion. We do not retain jurisdiction.

457 A.2d 877 Pennsylvania, Appellant, COMMONWEALTH of

v. LAPIA, Donna M. Jan Marks. a/k/a Pennsylvania, COMMONWEALTH Appellant, Billy G. DUGGER.

Superior Court of Pennsylvania.

Argued June 1982.

Filed Feb. 1983. Reargument April Denied 1983. Eberhardt, District Pitts- Deputy Attorney, Robert L. Commonwealth, (at 1043). No. burgh appellant for Ruslander, Lee Assistant District West Ches- Attorney, ter, Commonwealth, (at 2696). appellant for No. Chase, (at No. Pittsburgh, Lapia, appellee

Norma 1043). Wade, Chester, for Dugger, appellee

Andrew Stuart West (at 2696). No. SPAETH, CERCONE, President Judge,

Before CA- VANAUGH, WIEAND, McEWEN, CIRILLO and MON- TEMURO, JJ.

SPAETH, Judge: appeals, by This case arises on two each the Common- suppressing wealth from an order evidence. We ordered appeals they the consolidated because both involve the issue suppressing appealable. of when an order evidence is In Part I of this conclude that an order opinion we is suppressing appealable apparent evidence when is from the the substantially record that order terminates or handi caps prosecution. overruling This conclusion involves Martz, Commonwealth v. Pa.Superior 201, 259 393 A.2d Ct. Kunkel, Commonwealth v. (1978), 787 and Pa.Superior (1978) (plurality opinion), Ct. 385 A.2d 496 where held we that an order if suppressing appealable evidence is not fails to state in its that brief order terminates or substantially handicaps prosecution, with a brief outside of not explanation, may go which but must record, be inconsistent that is so. It also why with Trefry, Commonwealth v. overruling Pa.Supe involves Commonwealth v. (1977), rior A.2d 786 and Ct. Deren, Pa.Superior (1975), Ct. 337 A.2d 600 where we held that an from an accept” appeal “we must order suppressing good evidence “as Commonwealth’s faith the prosecution certification” that will be terminated or substantially handicapped.1

In the course of our discussion recognize we sometimes an order evidence in fact suppressing may sub stantially prosecution that fact not handicap but will be concluded, however, apparent from the record. We have suppressing such case order evidence is not and cannot made state appealable, appealable by any ment If such an is Commonwealth. order to be appealable, appealable it must be made by Supreme Court might way appear just 1. It from the in which we have described them Trefry already that Deren and would have been overruled Kunkel However, pushing and in Kunkel we said that "with a little Martz. pulling," Trefry Deren and could be understood as not inconsist- Kunkel, position being ent with the announced in and neither Kunkel purported nor to overrule them. Martz CAVANAUGH, in Judge opinion Judge rule. joined by MONTEMURO, concurs in this Judge conclusion. McEW- CIRILLO, Judge EN and the reasons stated their would not respective opinions, Trefry overrule Deren. opinion In Part II of this we orders apply the two I, before us the conclusions reached Part and find that it apparent from the record that both orders would termi prosecution. appeal- nate the We therefore hold the orders able, Again and consider them on their merits. arewe all variously Lapia, divided. we agree that the evidence was and that properly suppressed the order of the court should lower therefore be affirmed. reasoning majority The of the court is stated in this in opinion. Judge Judge WIEAND CIRILLO concur In obliged the result. Commonwealth v. are Dugger, we § 11, 1911, 4, Act of interpret May P.L. 274 61 P.S. § first, 384. In this that opinion expressed, view is Act, under prison officials in a manner may, appropriate circumstances, to the particular person search a who wishes prison, to visit the if the officials act on the basis visitor, and if the suspicion, being reasonable after advised visit, that he may making leave without his voluntarily search; second, here, consents to the that the record on the Commonwealth failed to prove suspi either reasonable cion or consent. The voluntary Judge joins President opinion. Concurring, Judge CAVANAUGH, this opin an Judge MONTEMURO, ion joined by would hold that the did prove suspicion, Commonwealth reasonable but where, here, search, as the search was a strip voluntary consent to the search must also proved be and that it was Thus, not. the President Judge, Judge CAVANAUGH and MONTEMURO, Judge and I agree that the search was and, therefore, illegal that the properly sup evidence was pressed and the order of the lower court should be af WIEAND, Judge firmed. in an opinion joined by Judge CIRILLO, Judge McEWEN and would hold that the Com did prove suspicion monwealth reasonable and consent. They uphold would therefore the search and reverse the order of the court. lower

I In Commonwealth v. Bosurgi, 56, 304, Pa. 190 A.2d denied, cert. U.S. 84 S.Ct. 11 L.Ed.2d 149 (1963), the held Supreme Court that when an order sup pressing evidence terminates or substantially handicaps the prosecution, the order is immediately appealable by the effect, Commonwealth. This is so because in practical order is final. If the Commonwealth were required go to trial suppressed evidence, without the the defendant would if probably, certainly, acquitted. not Since the Common may appeal wealth not an it acquittal, would never had have to secure opportunity appellate of the order. review Bosurgi the court did not question address the of how an appellate court is to determine whether an order sup- pressing evidence does in fact terminate or substantially Martz, In handicap prosecution. Pa.Superior (1978), Ct. 393 A.2d 787 specified this court a procedure hoped would enable it to make that determination, and decide thereby whether an order is ap- pealable. procedure The had proposed by been the plurality Kunkel, opinion Pa.Superior Ct. 5, (1978). 385 A.2d 496 It was that an suppressing order evidence is if appealable not the Commonwealth fails to state in its brief that the order terminates substantially or handicaps prosecution, with a brief explanation, which may go outside of but must not be inconsistent with the record, of why that is so.

It is in undisputed us, the two cases before Commonwealth failed to with the comply procedure estab- Kunkel Martz. lished Common- case, the first wealth v. Lapia, No. 1043 April 1978, Term of this panel court filed an opinion 12, 1982, and order on March quash- ing the Commonwealth’s appeal because of that failure. granted We the Commonwealth’s petition reargument court en banc. We also sua before sponte ordered

273 case, in reargument the second v. Commonwealth Dugger, 1980, 2696 Philadelphia argued No. which had been before panel another had not yet but been decided. We then ordered the cases to reargued together and instructed counsel that we wished to the procedures reconsider estab- lished Kunkel and Martz.

A mayWe start our by reviewing discussion the decisions that led to Kunkel and Martz.

This court’s first citation of connection Bosurgi with a appeal Commonwealth from an order suppressing evidence Pa.Superior 599, v. 205 Smyser, Ct. (1965). 211 A.2d 59 There simply, we said “Such an appeal properly made at this time: Commonwealth v. Bosurgi, 56, 411 Id., Pa. 190 A.2d Pa.Superior 601, 304.” at 211 A.2d at 61. Our next Rose, case was Commonwealth v. 211 Pa.Superior 295, (1967). Ct. 235 A.2d 462 There we said: “The appealed. Commonwealth has Since appellee has not filed a motion to quash, we will assume that the suppression order will handicap the substantially Common- wealth and hear the appeal.” Id., 211 Pa.Superior 296, at 235 A.2d at 463. The next year we decided Commonwealth Smith, 212 403, v. Pa.Superior Ct. 244 A.2d 787 There, without reference to quash whether a motion to had or had filed, not been quashed we the appeal because we determined from the record that despite suppression order, the Commonwealth still had enough evidence so as not to be substantially handicapped. cases,

In these others, as well as e.g., Commonwealth Payton, 254, Pa.Superior (1968); Ct. 243 A.2d 202 Pa.Superior Hernley, Ct. (1970), A.2d 904 denied, cert. 401 U.S. 91 S.Ct. (1971), L.Ed.2d 813 there was no indication of any disagree ment, either about the propriety appeals, or about how propriety was to be determined. harmony

This did not continue. In Commonwealth v. Thorne, Pa.Superior 122, 223 (1972), Ct. 299 A.2d 370 four held that an

judges appeal quashed should be because the Commonwealth had admitted at oral argument it was order, not substantially handicapped by suppression and supported that admission was by record. The three dissenting refused to judges rely memory on a of what had said at oral in argument; opinion, been their in the absence a quash, of motion to appeal should be heard unless the record showed the affirmatively availabili ty to the Commonwealth of other evidence. The division within the court became more stated in sharply Common Deren, 373, 233 Pa.Superior wealth v. Ct. 337 A.2d 600 said, There four judges the District Attor “[W]hen ney from one of the counties of this Commonwealth directs evidence, from the appeal suppression of we must accept appeal such an as the good Commonwealth’s faith certifica tion that the case will be terminated or substantially preju order, diced such an and determine if only [we should] Id., proper.” Pa.Superior was at suppression 376- 377, 337 A.2d at 602. The dissenting judges two refused to and, this formulation accept approach applying first in Smith, taken Commonwealth v. supra; see also Com Kloch, monwealth v. 230 Pa.Superior Ct. 327 A.2d 375 (1974), said that would find from the record they that the Commonwealth was not substantially handicapped because it, enough other evidence was still available and would quash appeal. therefore DeFelice, Pa.Superior Ct. (1977),

375 A.2d opinions were essentially they as had Deren, been Commonwealth v. what had only been the dissent in DeFelice, Deren became the majority and However, the appeal quashed. in Commonwealth v. (1977), Trefry, Pa.Superior Ct. 375 A.2d 786 which DeFelice, was filed the same day as the majority again took position majority Deren. The procedure established repre- Kunkel Martz attempt sented an compromise achieve these conflict- ing opinions. hand, On the one wrong it seemed say we must take jurisdiction appeal hear an simply be-

275 appellant appeal. cause the had filed the On the party hand, right presume other it seemed that when the did appeal, appealed believing good Commonwealth the order terminated or suppressing faith that evidence Besides, substantially handicapped prosecution. how appealing could we tell whether the Commonwealth was good suppression faith? Wasn’t the that a order judgment one, substantially handicapped prosecution subjective which differ attorney would from one district to another? The reasoning compromise behind the Kunkel—Martz was that by requiring explain, the Commonwealth to briefly, the order why appealable, we could if not eliminate at least diminish the chance that an reflected an appeal unduly subjective, unreasonable, or judgment. however,

Plainly, compromise was an uneasy one. what, For really, was the difference accepting between appeal questioning without its propriety, as Deren and and Trefry, accepting an appeal questioning without its propriety, so as the long Commonwealth stated in its brief appeal Also, was proper? application our compromise was inconsistent. If the Commonwealth made required statement, accepted we the appeal and con- sidered the suppression See, order on its merits. e.g., Burton, 73, 292 Pa.Superior Ct. (1981). A.2d 1010 But if the Commonwealth failed to make required statement, quashed sometimes we the appeal, e.g., Commonwealth v. Pa.Superior Montgomery, Ct. 32, (1981), 436 A.2d 705 while other times we permitted the statement, Commonwealth to make a belated e.g., Com- Marzel, 553, monwealth v. 291 Pa.Superior Ct. 436 A.2d 639

B reflecting upon about, After our thrashing and re-exam- law, ining the we have reached three conclusions.

Our first conclusion is that Commonwealth v. Trefry, supra, Deren, supra, Commonwealth v. must be over- ruled, if, indeed, they not already have been overruled sub Hill,

silentio. Commonwealth v. 497 Pa. 439 A.2d (1982). There, Supreme Court quashed the Com- monwealth’s appeal from an order suppressing evidence. Court, Said the per curiam: “The appeal of the Common- wealth ... is quashed, as we do not believe the order suppressing weapon impairs Commonwealth’s case. Bosurgi, Pa. 190 A.2d 304 (1963).” Id., 497 Pa. at 439 A.2d at 1153. This that, statement makes plain contrary to Deren, Trefry are not required we to accept appeal an without questioning its propriety. Instead, appellate court, as an we must do the Supreme what Court did: examine the record and decide for ourselves whether the suppression order terminates or substantially handicaps prosecution. conclusion, This it noted, may with, indeed, is consistent is required by, principle that finality [i.e., appealability] of an order “[t]he is a judicial conclusion which can be reached after an only examination of its ramifications.” Bell v. Con- Beneficial sumer 225, 228, Discount 465 Pa. Company, 734, 348 A.2d (1975) added). (emphasis See, also, Greco, v. Pugar 68, Pa. (1978); 394 A.2d 542 Cox, T.C.R. Inc. v. Realty, Pa. (1977); 372 A.2d 721 Toll, Toll v. 293 Pa.Superior (1981); Ct. 439 A.2d 712 Gordon, Gordon v. Pa.Superior Ct. 439 A.2d 683 Our second conclusion is that Martz, Commonwealth v. supra, and Kunkel, supra, must also be overruled. The judgment underlying these cases—that wrong was that say we must hear an appeal simply because the party appellant in filing appeal presum- ably acting good faith—has been vindicated. Common- Hill, However, wealth v. supra. this judgment is not implemented by requiring the Commonwealth to explain its why brief the appeal proper. is If the explanation does no more than state facts apparent record, from the it is superfluous; we can examine the record ourselves. If the explanation goes record, then, beyond the by accepting the explanation we are abdicating our as an responsibility ap- court; pellate instead of deciding for ourselves whether we jurisdiction, whether, is, have the order is appealable, arewe accepting interested litigant’s unsupported asser- tion. third

Our conclusion is a different only way stating our first two. It is as follows: When confronted with a Com- appeal monwealth from an order suppressing evidence, we must determine for ourselves whether the order appeala- ble—whether it terminates or substantially handicaps the prosecution; and we must make that determination on the record, basis of the and on that basis alone. This conclu- sion is with, from, consistent and derives settled principles. respect With to the first part—that we must determine for ourselves whether the order is appealable—we have already cited authority of an finality order is a judicial “[t]he conclusion.” Bell v. Consumer Discount Com- Beneficial pany, supra; Greco, v. Pugar supra; T.C.R. Inc. Realty, Cox, supra; Toll, Toll v. supra; Gordon, Gordon v. With supra. respect to the part—that second we must make that determination on the basis of the record alone— we have repeatedly case, held that in deciding we will not consider any statement not supported by facts of record. General Accident Fire & Assurance Corp., Ltd. v. Life Flamini, 312, 299 Pa.Superior (1982); Ct. 445 A.2d 770 Anmuth v. Chagan, Pa.Superior 32, 295 Ct. 440 A.2d 1208 (1982); Rini, 475, Commonwealth v. 285 Pa.Superior Ct. (1981). 427 A.2d 1385 addition,

In our third conclusion is consistent with the Supreme Court’s practice. As noted, we have already the Court, in deciding did not address Bosurgi, question the appellate how an court is to determine whether an order suppressing evidence terminates or substantially handicaps prosecution. However, the in practice the Court has always made that determination on the record, basis of the and on that basis alone. That is what it did in Bosurgi. McDade, 414, Commonwealth v. 462 1, Pa. 416 n. 341 A.2d 450, (1975) n. 1 denied, 451 909, cert. 424 1102, U.S. 96 S.Ct. 47 (1976), L.Ed.2d 312 the Court specifically referred to the (“clear record from the record” that suppression will handi- cap prosecution). Milton, It in also did Commonwealth v. 535, 1, 282, (1975) (“record 461 Pa. 538 n. 337 A.2d 284 n. establishes” that It suppression handicap prosecution). will in is true that some cases the has not specifically Court determination, the acknowledged record as the basis of its 485, Commonwealth, 480 Pa. 391 A.2d 989 Steding (1978); Gullett, 431, Pa. 329 A.2d (1974), that the nothing suggests but those cases Court went outside the record. It is also true that Kunkel, once, in a Court has cited footnote. Common- Nazarovitch, 496 Pa. 101 n. A.2d wealth v. not, however, 172 n. 1 We do understand that approving procedure; citation as the Martz—Kunkel procedure, only no reference to that cited Court made authority with as for the conjunction Bosurgi Kunkel suppression that a order a final order. proposition may be the three formu- recognize We conclusions we have every possible lated do not embrace sort of Commonwealth suppression easy imagine from a order. It is appeal apparent it is not from the record that the appeal where order terminates or substantially handicaps prosecution, example, it will. yet Suppose, where fact suppresses gun. may order The record disclose that the evidence, a great Commonwealth still has deal of other Thus, witnesses to the crime. on the basis of including eye suppression the record alone we could not that the say handicapped either terminated or gun substantially prosecution. attorney may Yet the district know facts not him, and, them, if persuade of record that we knew would us, persuade suppression substantially that the does handi- For all cap prosecution. example, eyewitnesses may records, jury may very have criminal so well not them, gun may powerfully believe and the be the basis of incriminating ballistic evidence. Under Commonwealth v. Deren, and the supra, Commonwealth v. Trefry, supra, from the appeal suppression Commonwealth’s order would lie; regard for under those cases we would ourselves as required “accept appeal to as the Commonwealth’s [the] good prosecution faith the certification” that was substan- Martz, tially handicapped. Even under Commonwealth v. and supra, Kunkel, or so it supra, seem, lie, would the would so as the appeal long Common- explained why wealth in its brief the prosecution believed sure, was to substantially handicapped; by referring be to and consequent witnesses’ criminal records need for evidence, ballistic the explanation go would outside record; but it would not be with the record. inconsistent however, Today, we overrule all cases. these recognize

We also a argument may forceful be made that as policy a matter of the Commonwealth should permitted be a appeal suppression in the order sort supposed.2 case we have As just Supreme Court ob served if the Bosurgi, go Commonwealth is forced to trial suppressed without the evidence is an result acquittal, true, the case over. is is This equally whether record, substantial is on is handicap apparent or not apparent However, but nevertheless exists. if such policy is to implemented, be it must by Supreme Court. We have no power enlarge appeal- our jurisdiction holding able an order that is precedent appealable. establishes not Toll, (Gurnick Toll v. supra Employees Government Co., Pa.Superior Insurance Ct. 420 A.2d 620 (1980), overruled). however, The Supreme Court have does §§ 1701, power, Pa.C.S.A. which it exer may cise, exercised, has defin promulgation rules ing order, when although interlocutory, appealable, Pa.R.A.P. 311. our part, For we are our satisfied that today decision conforms to the law. leave to the We Supreme Court whether the changed. law should be

II decided Having suppression when order is appealable, we may orders, and, now examine the if they two are appealable, consider whether the they suppressed evidence suppressed. properly opinions by Judge 2. Judge See the filed McEWEN and CIRILLO. 280

A of us of a possession Each the cases before involves Lapia, Commonwealth v. In controlled substance. defendant, here, is appellee charged, among charges, other of, deliver, possession possession with with intent cocaine, bags three which were seized a search con- v. In Commonwealth Pittsburgh airport. ducted at the defendant, here, Dugger, appellee is with the charged which was seized in a search possession marijuana, conducted Farms Prison. County inside Chester court each case the lower ordered controlled substance suppressed as evidence. each case fully

The facts of will be stated more far, however, from the little we have said so it below. Even record apparent is that the discloses that each case the terminates the suppression prosecution: order the Common cannot a defendant’s of a prove possession wealth con trolled if it cannot prove substance took sub from stance the defendant. We therefore hold both orders appealable. The fact that both cases the Commonwealth Com failed to comply procedure by with established Martz, supra, monwealth v. Commonwealth v. Kunk el, immaterial, supra, those cases overruled. being today

B * v. Lapia Commonwealth evidence, When we review an order suppressing we are of course not the lower court’s conclusions of bound bound, however, findings law. We are the court’s fact, if e.g., See findings supported by those are the record. Davis, Commonwealth v. 363, (1980); 491 Pa. 421 A.2d 179 Webb, Commonwealth v. 329, (1980); 421 491 Pa. A.2d 161 Cruz, Commonwealth v. 559, (1980); Pa. 414 489 A.2d 1032 Williams, 19, 287 Pa.Superior Ct. 429 A.2d 698 We have therefore “refused” “time and * Judge Judge WIEAND and CIRILLO concur in the result reached

infra.

281 our for those of again” findings substitute own court, Davis, suppression supra Commonwealth v. Pa. 181, especially credibility at 429 A.2d at where is at issue, Stamm, Pa.Superior Commonwealth v. Ct. Butch, (1981); A.2d 4 Pa.Superi (1978) (court or Ct. A.2d 803 divided on equally grounds), other remanded other 487 Pa. grounds, on review, 407 A.2d 1302 of scope Mindful this of we a now turn to discussion of the facts.

Appellee August 8, 1977, was arrested on charged and substance, possession with of a possession controlled with substance, intent to deliver controlled criminal conspiracy, possession of prohibited and offensive weapon. Her arrest on the was based search of a package containing cocaine, which was mailed to her Mr. Field. by one The package had been sent from the airport Miami Pittsburgh airport through “Sprint” service delivery of Eastern Airlines. At the Miami airport, appellee’s without knowledge, package had and opened been its contents Airlines, searched by employee of Eastern one Mr. Strachan. The testimony regarding the circumstances of search was in this conflict. Specifically, the conflict was between Mr. testimony testimony Strachan’s and the of one Police, Detective of Sadtler the Dade County and concerned police extent to which the participated had in the search. court, The hearing lower after the testimony, made find- of ings law, fact and required conclusions of by as Pa.R. 323(i), Crim.P. and thorough opinion submitted a in support of its order granting appellee’s motion to suppress. The findings court’s and conclusions were as follows: Fact: Findings of

1. That a meeting held between members of the Dade County Department Police and employees East- ern Airlines wherein the latter were informed of the shipment of narcotics via Eastern Sprint; 2. That Eastern were employees given guide- a set of lines the Dade County Police to implement ferreting narcotics; out the flow of a result meeting, said as subsequent days

3. That two employee an Eastern guidelines, said implementing shipment delivered for wrapped package that a suspected supervisor, informed his narcotics and so contain might Mr. Strachan. suspected never have been package That the would

4. and meeting guidelines for the containing narcotics but Police; Dade County instructed to the suspicions said conveyed That Mr. Strachan 5. Mr. that he Police turn told Strachan County Dade who authority open package; had the direction, Mr. upon in reliance said Strachan 6. That Police County notified the Dade package said opened thereof; of the contents employees opening of the Eastern That the actions

7. effect, were, in the actions of searching package Police; County Dade the package the lid of opened That Detective Sadtler 8. being after sum- informed of its contents being after office; Mr. moned to Strachan’s tested, de- preliminarily contents were field 9. That the to cocaine, Sprint and sent via rewrapped termined to be Pittsburgh; the intended destination Sergeant notified James That Detective Sadtler 10. the Pittsburgh suspected DEA of by telephone Miles of the package; contents of information, a search upon That said sole[l]y

11. based package; for said was issued warrant by Deputy was executed 12. That said search warrant package received said McDaniel after Defendant Sheriff and; Pittsburgh Airport, International at the Greater said search and seizure Defendant pursuant 13. That thereto, arrested, and made state- searched incident a result of said arrest. ments as Conclusions: regard- to raise issues standing That Defendant has

1. rights Amendment under of her Fourth ing the violations Constitution; the U.S. agent

2. That Mr. Strachan’s actions as Dade the County protections Police invoked afforded Fourth of Constitution; Amendment the United States 3. That no cause probable existed for search of the Strachan; package by Mr. exigent

4. That no circumstances preclud- existed which obtaining warrant; ed necessity search That Sadtler probable 5. Detective lacked cause in searching upon package arriving at office of Mr. Strachan;

6. That no exigent preclud- circumstances existed which ed of from necessity Detective Sadtler obtaining search warrant of prior opening the lid the package contents; and examining its That

7. the search warrant issued Pittsburgh by Allegheny County Authorities on was based illegally evidence; seized

8. That the arrest subsequent Defendant to the search and seizure the package and the items in possession Defendant’s and statements made Defend- ant simultaneous therewith illegal were fruits search and seizure illegally Slip op. obtained. at 17-20.

The Commonwealth challenges both the lower court’s findings of its fact and conclusions of law. It will be consider, first, convenient to challenge Commonwealth’s next, the findings, its to the challenge conclusions. lower challenging findings, court’s the Common- argues search, wealth that the search was a private outside Amendment, Fourth because it was initiated and con- Strachan, by ducted Mr. a private According individual. to Commonwealth, “police participation occurred after only the initial by search employee in the [Mr. Strachan] of course his employment.” Appellant’s Brief at 9. 323(h),

Under Pa.R.Crim.P. the Commonwealth had the burden of establishing that the cocaine was not seized in violation of appellee’s rights. Among the witnesses called Mr. Strachan and Detective the Commonwealth were summarized as follows. testimony may Their be

Sadtler. the Eastern Airlines supervisor Mr. Strachan was before the airport. days at the Miami Two ticket counters opened, ap- he was containing the cocaine was package plainclothes Sadtler and another by Detective proached 2/10/78, copies had N.T. 86. Detective Sadtler detective. shipping “informed us that we were Sprint waybills also Id. 87. Detective Sadtler by Sprint.” a lot of narcotics irregu- the lookout for “different told Mr. Strachan to be on to watch.” good thing be a thought larities that he would irregularities these included asked whether Id. When to and what the reported contents are “whatever the correct?”, be, Mr. would shipment of the cost of value 88. Detective Sadtler answered, “Correct.” Id. Strachan call him if Strachan, supervisors, and the other to asked Mr. 92. questions. had Id. they any later, with approached Mr. Strachan was days About two the ticket Delphus, Mr. one of question by the package at the testify Mr. who did not Delphus, Id. 12. counters. had package been told Mr. Strachan hearing, had sent two a man who Sprint delivery checked and who Sprint previously, service packages through Mr. Delphus tennis Id. grips. said the contained package he was not package” on the because shaky was “a little pay a man would why “to evaluate really $25.00 able [the 13. Mr. grips.” to send tennis Id. Sprint delivery] cost of nobody pay “that would $26.50 Strachan also believed 24, although, id. grips Pittsburgh,” of tennis pair send and had testified, grips tennis cost he he did not know what suspected one. 52-53. Mr. Strachan bought never Id. narcotics; he “didn’t it con- suspect contained package explosive.” tained an Id. 57. the Narcotics Division telephoned

Mr. Strachan then a man later identified spoke Dade Police and County gentleman said to the “probably as Detective Sadtler. He box,” 61, and to the “explained narcotics in the id. there is opening his on opinion wanted gentleman [that he] Strachan, package,” According id. 65. to Mr. the conversa- tion was as follows: I

Basically gentleman had told the I had that I package really open to I really wanted but wasn’t sure what the involvement And gentleman would be. the I talked to informed me that he give could not me the authority to open package. that That I did have the authority. In fact he was emphatic telling about me. He I said had no right to tell to you open package. He said have you to decision, make that and after you make that decision if you my need assistance call 22-23. me. Id. cross-examination, On Mr. Strachan testified further about the conversation:

Q. did he say you? What to A. He told me he could not give me the authority to

open package. Q. you But open pursuant could to the— A. He said I did you have have authority,

authority open to the package. fact, emphasized he I give could not you

authority. decision, He said make if you your you need my assistance call me is what I he believe said. Q. If I understand it correctly officer told that you

he could personally give not to you authority open the package, but that you fact did have the authority it, to open correct? Yes,

A. sir. Q. And that authority tation Act, correct? ^[3] was pursuant to the Air Transpor argue 3. The Commonwealth does not opening that Mr. Strachan’s Act, package justified Transportation Safety the Air (1976), provides U.S.C.A. 1511 which § that an air carrier must refuse transport property any person who does not consent to a property search dangerous of his to determine whether it contains “a weapon, explosive, or other destructive substance.” The Common- argue. wealth could not so Mr. Strachan testified he knew he notify would have to and obtain the consent someone whose 2/10/78, 37, package open, he wanted to N.T. and that he was unable get Field, shipper package question, the consent of the Mr. Yes. A.

Q. you? Did he say He I it. authority open No. said had the to just A. He tell didn’t me. then decided you you then of what he told

Q. As result is that correct? open package, to the Yes, 2/10/78, 65-66. A. sir. N.T. conversation, Mr. telephone after this

About five minutes it that contained white opened package, the saw Strachan Id. 66-67. and called the Narcotics Division back. powder, office, came to his again, to Detective Sadtler who spoke He that cocaine. the and determined it was powder, tested Mr. Stra- testimony contrary Detective Sadtler’s Mr. on the spoke He that he first Strachan chan’s. said and opened package Mr. Strachan had the telephone after 11-15, 72, 1/27/78, N.T. powder, that it contained the found him that he the opened told had and Mr. Strachan money about suspicious because he was package 64-65. To the best ship grips, cost to tennis id. would had this was sole reason Mr. Strachan knowledge, his him called Id. 72. Mr. Strachan opened package. he there. 75. Detective Sadtler was out Id. because told supervisors that he had met with airline agreed id. they any suspicious packages, them to call him if saw suspi- them to detect giving any guidelines he denied but he meet Mr. He also said that did not packages, cious id. him for the he met the but met supervisors Strachan when had package time office after been first the airline Id. 55. opened. remarking upon

After the contradictions between Sadtler’s, at testimony slip op. and Detective Mr. Strachan’s Strachan’s, 12-14, expressly Mr. court credited lower of Detective stating testimony that “the Court finds in the area the Dade lacking credibility key Sadtler Eastern County Police contacts communications with Also, package he did not id. 55. Mr. Strachan said that think explosives. Id. 57. contained Id. 12. This employees.” finding dispositive, we it, accept especially must since it resolves issue of credibility. Stamm, supra; Common- Butch, credible, wealth v. as Mr. supra. Accepted Stra- fact, testimony chan’s adequately—in amply—supports the court’s findings concerning lower extent which the in the police participated search. The Commonwealth’s argument challenging findings these is therefore without merit. mentioned,

As we have the Commonwealth also chal- lenges law, the lower court’s conclusions of which have been quoted supra at 283. The critical conclusions are Number searching package, Mr. Strachan was acting agent Police,” “as of the Dade County thereby bringing into the play protection by afforded the Fourth Amendment, 3, and Number that there was no probable for the cause search.

The Fourth Amendment is a limitation on the government only. Accordingly, gained evidence aby pri vate search is not subject being to excluded as evidence seized in violation of the amendment. Burdeau v. McDo well, 465, 41 574, 256 U.S. S.Ct. 65 L.Ed. (1921); 1048 Adams, Commonwealth v. 234 Ct. 341 Pa.Superior A.2d (1975).4 However, 206 it does not follow from the fact a that search private was conducted by individual, a rather a government official, than private, the search was if the search was requested or instigated otherwise by government if agents, or the agents participated have in it in some way. Dembo, Commonwealth v. 451 Pa. A.2d (1973); Commonwealth v. Borecky, Pa.Supe rior Ct. (1980); LaFave, A.2d 753 1 Search and § (1978). 1.6(b) Seizure The reason for this rule was dis in cussed Dembo, supra. Dembo, In rule, support of this exclusionary has been said that "the rule 4. searcher, likely private would not deter the by who is often motivated independent reasons aof desire to secure criminal conviction and engages who upon sufficiently regular seldom in a searches basis to by exclusionary LaFave, be affected the sanction.” 1 Search and 1.6 § Seizure on information from the federal acting police, the state manu- was involved LSD that the defendant authorities if notify them the the- service facturing, postal asked About two packages the mail. any received defendant notified postmaster the assistant request, after the months and, had a package, that the defendant received police the the the trooper,” opened direction of request “at the held Supreme The Court package, hashish. which contained of the Fourth search and violative governmental the Amendment, saying:

Here, postal record clear that the authorities were officials to further merely police a tool used any The facts investigation. record is barren police in the police have officials case permitted that would examine its contents. The parcel bar to this open at relying upon to sustain the search seeks opened fact postal physically authorities The Fourth Amendment and not officials. package police concept of the American very reaches the core individual, its protection thus allow dignity of subterfuge would reflect defeated most obvious given so much to heritage little deference to a we have sustain. the conclusion that overwhelming

The evidence forces officials in furtherance by police this search was initiated postal and the police progress then investigation attempt the means in an merely authorities were selected establishing probable cause. necessity to avoid the sj< ^{[*] [*]} sfc # bar, police that the In the case at there can be no doubt in ad- package the search of actively participated concerted effort permit To such appellant. dressed to attempt in postal authorities among police rights constitutional cannot be appellant’s circumvent 7-11, at 695. done. 451 Pa. at 301 A.2d Id. Accord, (4th Jennings, 653 F.2d United States Cir.1981) agent may not avoid constitutional (“government upon restraints his conduct procuring a private individu- al to perforin him”). forbidden act for

Searches airline employees are chal frequently lenged governmental as searches under the Fourth Amend See, Note, ment. Private Air Freight Searches and the Amendment, Fourth 10 Golden Gate L.Rev. 131 Each case turns on the extent of the government’s involve ment, and a search that the government has encouraged or actively participated is not private but governmental. Compare (airline United States v. Jennings, supra employ ee decided to open package himself, he telephoned before government agent); Andrews, United States v. 618 F.2d (10th Cir.), denied, cert. 449 U.S. 101 S.Ct. (1980)(airline L.Ed.2d 26 employee opened package without prior any consultation government officials), with with Walther, United States v. (9th Cir.1981) F.2d 788 (airline employee opened package government after agent had encouraged him to open it and he had reasonable expectation reward).

Although not the context of search, an airline our Supreme Court considered the issue of whether a search governmental was for the first time Dembo, supra. above, As discussed the fact search governmental was was straightforward because the state police had specifically requested the search. The principle enunciated in Dembo, however, applied was later and clarified in Commonwealth v. Borecky, supra, a case not so straightforward Dembo, as and one provides us guidance with in deciding the matter before us. Borecky, private individual searched a house and

found A marijuana. state trooper testified that he knew the individual was going house, to search the and that he waited about a mile away while the house being searched to see the outcome. reiterate, We said: “To appears that Trooper Leganza was in contact with the informant period for a search; time prior and, to the although it might not be inferred that Trooper Leganza either explicitly or implicitly instructed the informant evidence, gain- it cannot be residence appellant’s

search the, with the warrantless search conducted said that Id. 277 trooper.” knowledge and concurrence prior A.2d at 756. The conclusion Ct. at Pa.Superior knowledge the warrantless the of “prior followed therein, to consti- was sufficient search, acquiescence and Id., the Commonwealth. on tute ratification” behalf 757. 419 A.2d Pa.Superior Sadtler, agent, the Detective government Here trooper in the search than did the more deeply participated prior the had trooper, Like detective the Borecky. (He denied he did but the lower of the search. knowledge him.) trooper, Also the the not like did believe court in the of the search. result acquiesced awaited and detective search, addition, when, to the Mr. Strachan though, prior In the opinion opening package, the on get to detective’s called told him that he had the “emphatica[ally]” the detective in fact not although this was authority open package, to said, correctly, that quite The lower court therefore so. had the authori Mr. that he explicitly telling Strachan “[b]y that the narcotics the Court finds open package, ty at Slip op. him tó do so 11. in effect directed ...” agents government of instruction Borecky, finding Under knowl private unnecessary; “prior to the searcher agent search, therein, and acquiescence the warrantless edge of knowledge Here, prior in addition sufficient.” [are] government there was instruction acquiescence, Dembo, Mr. Stra supra. as agent, but, on his initiative as open not own package chan did testified, as a of his conversation with Detective he result Comment, Private Police Bulletins Sadtler. See (1970) for” Searches, “but (suggesting 119 U.Pa.L.Rev. by. instruction explicit sufficient cases short cause LaFave, individuals); and Seizure Search police § (ibid). 1.6(c) (1978) addition, purpose had no we note that search drugs, purpose which was

independent discovering As Mr. Strachan police and not airline. benefiting

291 testified, (of he the package drugs believed contained con- (of police) explosives cern and not concern to the airline). The of purpose important the search is an factor in determining private governmental. whether it was or See 93, Eshelman, Commonwealth v. 477 Pa. 383 A.2d 838 (1978) (off-duty policeman’s search held governmental where he searched for drugs automobile for the “solely purpose of turning superior over to his on the police force”); Dembo, (postal supra clerk’s search held governmental where open did not package furtherance of postal business no but “was more than an instrument used by police officers to further their investiga- tion”); (informant’s Commonwealth v. Borecky, supra of private search home prior with knowledge police); Kozak, Commonwealth Pa.Superior 348, v. 233 Ct. (1975) (airline A.2d 387 employee’s search of baggage un- dertaken in normal course of duties to identify owner and prior without consultation or knowledge police). It is therefore clear that the lower court properly conclud- ed that the search governmental, was and so within the Fourth Amendment.

Having decided that the search was governmental, we must now decide whether it was permissible under the Amendment, i.e., Fourth whether there was probable cause to conduct it.5 In concluding that there was no probable search, cause for the the lower court said that “mere conjecture that the cost shipment the tennis grips] [of exceeds the value of the item being shipped does not ” ‘probable constitute cause’ for believing that the package contained drugs. Slip at op. 16. This conclusion was clearly proper.

The only evidence of probable produced cause the Commonwealth was the testimony of Mr. Strachan. He testified that the only thing that made him suspicious about the box was that it would not be worthwhile for someone to appellant There can be no 5. privacy doubt that had a interest in the package. Chadwick, United States v. 433 U.S. 97 S.Ct. L.Ed.2d 538 2/10/78, Pittsburgh. N.T. grips tennis ship pay $26.50 that he did not know the However, he also testified 53. tennis of what only “opinion but had grips cost of tennis concern was “My He further testified: cost.” Id. 53. grips grips tennis that there were that I did not believe just I to know falsified wanted being And if it were that box. amounts to testimony This in the Id. 51. box.” what package suspicion more than Mr. Strachan’s no held sufficient has never been drugs, contained which Pa. Kelly, cause. probable of vial (1979)(conduct appearance of defendant and A.2d 21 cause because probable for containing drugs insufficient Greber, 478 v. suspicion); officers’ Commonwealth merely that (1978) and “hunch” 63, (“curiosity” A.2d 1313 Pa. 385 probable insufficient contained heroin shopping bag Jackson, Pa. 461 v. open bag); cause to Commonwealth 999, 432, denied, 96 S.Ct. 632, 582, 423 U.S. 337 A.2d cert. (1975) and furtive behavior of (suspicious 46 L.Ed.2d 376 to search automo cause probable defendants insufficient 70, A.2d 19 Knowles, 459 Pa. 327 bile); v. Commonwealth slump- defendant’s (1974) by of officer aroused (“suspicion” paper cause to search probable in down seat insufficient ing 283, Pa. 314 A.2d 317 455 bag); Boyer, v. Commonwealth probable insufficient (1974) (“unusual look” defendant console). Moreover, there was automobile cause to search cases, evidence, police in that as there has been some no see drugs, contained tip package had a reliable 192, 441 Minoske, Pa.Superior 295 Ct. v. Commonwealth Pa.Superi 268 (1982); Hughes, 414 v. A.2d Commonwealth had an 536, (1979), package or that the 408 A.2d 1132 or Ct. drugs probably were the belief appearance justifying 113, Veal, Pa.Superior 287 Ct. inside, v. see Commonwealth Whitner, (1981); v. A.2d 1125 Commonwealth A.2d 414 Pa.Superior Ct. made all the more unreliable suspicion is

Mr. Strachan’s inexperi- untrained and as a civilian who was by his status has Supreme The Court judgments. in such making enced limited to police expertise that the even recognized (“We some extent. See Commonwealth v. supra Kelly, reject preposterous as the notion that possesses anyone expertise to render an on the opinion contents of a vial as seen in appellant’s car”). fortiori, suspicions A of an airline ticket counter supervisor untrained and inexperi- regarding drugs enced are even more questionable. See Andrews, United v. supra States (danger private private searches is that individuals are to mini- not trained mize of privacy invasions or property rights).

The Commonwealth had the burden of proving that the cocaine was not seized in violation of appellant’s constitu tional rights. Ohle, Pa.Superior Ct. (1981); 435 A.2d 592 323(h). Pa.R.Crim.P. Testimony by a “if” witness that the contents of the package “were falsified,” being he box,” “wanted to know what was insufficient meet that burden. We shall therefore affirm the lower court’s order suppressing evidence obtained the illegal from search of the package Miami suppressing also as the fruits of that search seizure package Pittsburgh and the of appellee.6 arrest * *

Commonwealth v. Dugger noted, We already have supra at page that we are suppression bound fact, court’s if findings of those findings supported record, are by the that may and we therefore not substitute our findings for the suppression opened 6. Since Mr. package, Strachan and searched the we do not question address the whether suspicion" he had "reasonable sufficient Leeuwen, to detain a it for brief time. States United v. Van 397 U.S. 249, 1029, (1970) (nature, weight 90 S.Ct. 25 L.Ed.2d 282 and fictitious package justified return address on its detention while warrant to obtained). open Martell, Compare United States v. 654 F.2d 1356 (9th Cir.1981) (momentary luggage justified detention of drug while detecting cause) dog probable arrived and established with United Place, (2d Cir.1981) (two States v. 660 F.2d 44 hour detention of amendment). Also, baggage violated fourth since we find that no existed, probable unnecessary cause for the search it is to decide existed, exigent any whether open- circumstances or whether second ing by illegal. Detective Sadtler in the airlines office was ** CAVANAUGFt, Judge joined MONTEMURO, opinion in Judge WIEAND, Judge concurs in the result reached opinion in an infra. joined CIRILLO, by Judge Judge McEWEN and dissents. Davis, supra; v. Commonwealth court’s. Commonwealth This Cruz, supra. v. Webb, supra; that to the discussion application particular has principle critical is whether issue follows, appear; for as will When a strip to search. consented appellee voluntarily alleged, we have said: consent is voluntary all the upon consent rests It is true voluntariness circumstances, deference and great and surrounding facts hearing court since the decision given should the appear to observe opportunity has had the that court defendants. and the demeanor of witnesses ance and 261, 254, Richard, Pa.Superior Ct. nom., denied, sub. Santos v. A.2d cert. 452, 46 L.Ed.2d 389 96 S.Ct. 423 U.S. Pennsylvania, opinion are in its as lower court stated findings The follows: ap- stated. The defendant very simply facts are

The Farms to visit his Prison peared County at Chester incarcerated. Prior to defend- who was there brother arrival, message authorities received prison ant’s police radio that an unidentified County the Chester from Billy by telephone caller them female had advised his prison to the to see brother way was on his Dugger his person. concealed on marijuana had balloons and the defendant prison, arrival at the On the defendant’s into an and ushered inside prison admitted to the was steel There through two doors. upon passage room in uniform officers and of three correctional presence that he doors, the defendant was advised behind locked order to be having contraband suspected was a strip in for he would have submit allowed a visit began clothing to remove his The defendant search. on floor was seized found the substance which removed his shoes. the defendant after ^[******] that defendant showing was

Despite record search, if he did not to the that advised that submit once upon not find the circumstances leave, could he had to we into prison, includes admission of the search which through steel doors that were being guard-lead [sic] being led into a confined area locked and subsequently uniformed officials where presence and in the of three of time that extremely period in an brief strip place took voluntary. Slip op. at 1-3. knowing consent was and court to make these testimony The led the lower as follows: findings may be summarized a.m., Mary Stamper, at 9:30 Ms. On June about radio, re- County police for Chester telephone operator a refused to a call from an older woman who telephone ceived 10/22/80, The said that identify herself. N.T. 5-7. woman way on his from Delaware Billy Dugger [appellee] one was brother, Eddie, to his County to Chester Farms Prison visit person. in a on his Id. marijuana with concealed balloon this Stamper prison conveyed 7-8. Ms. called the Sergeant to Reed. 6. Reed Sergeant information Staff Id. Walker, Sergeant it in turn to who is also em- conveyed Reed prison. Sergeant Sergeant at the Id. 13. told ployed indeed, visit, “did, sign if in for a I appellee Walker that go approach to another officer and down with suspected having to him that he was person explain for him proceed contraband and that order with his visit, not, If strip he to submit to a search. he would have visit, a premises would have to leave the without without entering appellee sign the institution.” did in for Id. When visit, Sergeant with Sergeant Langum a Walker went meet him. Id. 14. required

Visitors to Chester Farms Prison are County sign building building. at a outside the main Id. (Walker). through are in the They gate then “allowed Next, fence canine.” are lead they through Id. port, building fenced-in area called a side and enter the door, through a locked which leads into the “Mud Room.” coats, The Mud Room is where visitors leave items such as hats, and umbrellas. Id. The Mud Room has an outer door An through and an inner door. officer admits visitors the inner door, through outer then the officer admits them Id. door. Both doors are steel and must be unlocked. Id. 22. met appellee by

It in the Mud Room that was was Sergeants Langum, Walker and and also Corrections Mazza, them there. joined Sergeant Officer who Id. 22. come appellee Walker asked with them. Id. 24. Officer id., group, proceeded Mazza then left the which further into door, another locked down a prison through id. and turned into “an isolated hallway, right maintenance area,” The three then shop id. entered the maintenance storeroom, which is an area closed off from the rest of the maintenance a locked shop by steel door. Id. 25. The very big maintenance store room is “not a room ... about wide, fifteen, seven foot foot 23. maybe eighteen long.” Id. door, It has no in the and are cur- except windows those inside, appellee tained. Id. 26. Once wás from separated the outside two locked doors—the inner door of the Mud Room 24. and the storeroom door. Id.

There, Sergeant Langum, in the did not presence who testify Sergeant appellee: at the Walker said to hearing, contraband,

I told him that you suspected having were visit, you you order for to be allowed for a right strip would have to now to a search. Id. 27. submit See id. 16. that

Sergeant appellee Walker testified he did not tell that he did to a strip not have to submit search. Id. 17. in- describing appellant’s response, Sergeant Walker was consistent. At first he testified that “I had no sooner said one, that he something would have to submit and he said that, like or sure. And okay, belongings with removed the from 17. But later he that pockets.” his Id. testified did not appellee say anything response. Appellee Id. 27. undress, shoes, started to and when he took off his three red fell onto the floor. 18. Sergeant balloons Id. Walker “Control,” appellee then called taken upstairs holding rights tank area to “have his read.” Id. 20. consent to argues that appellee’s The Commonwealth warning in the implicit because “it is voluntary search was to him an alternative was available given that was if he to leave without visit- chose [appellee]—namely, to a search.” subject not he would ing his brother merit, for is without argument at 9. This Brief Appellant’s lower court’s with the disagreement to a simply it amounts out, being appellee’s pointed As the lower court findings. search, that he had to to the “if he did not submit told disclosed the one of the circumstances only leave” was “including] admission evidence, other circumstances the through steel doors being guard-lead prison, into the [sic] led into a confined being locked and subsequently that were officials,” all in of three uniformed presence area and at 3. period.” Slip op. “in occurring extremely this brief noted, not utilize a consent Also, prison court “The did long 2. have held that voluntariness form ...” Id. at We Merbah, 270 fact. v. is a of Commonwealth question (1979) (“It settled 190, 411 A.2d 244 is well Ct. Pa.Superior fact question is a of of consent to search that voluntariness of the circum- totality determined from the which must be case.”); Common- particular each prevailing stances 397, Watkins, 344 A.2d 678 Pa.Superior v. Ct. wealth Moreover, (1975) (ibid.). beginning as we noted at the to the discussion, given deference should be our “[G]reat on the issue of voluntari- hearing decisions of the court” ness, to observe opportunity since that court “has had of the and the de- appearance and demeanor witness Richard, Here the supra. ].” fendant voluntarily did not con- finding appellee court’s that lower the record. We must strip supported by sent to a search is at supra cases cited accept finding. therefore See 294. however, making that in its argues,

The Commonwealth standard, legal court an incorrect finding, applied the lower “knowing consent had to be both appellee’s namely, argument, of this the Common- voluntary.” support Bustamonte, 218, on U.S. wealth relies Schneckloth v. Brief at Appellant’s 93 S.Ct. 36 L.Ed.2d 854 7-9. proof knowledge

It is true that after Schneckloth “necessary- to refuse to consent is not a right demonstrating id. at 93 S.Ct. at to prerequisite,” However, voluntary. that consent to a custodial search the Court made clear that whether Schneckloth search of his subject knowledge right a has refuse factor, consent to the search to be considered with all of the other circumstances. today only

Our decision is a narrow one. We hold of a search is not in and the subject custody when attempts to a search on the basis of his justify State consent, require the Fourth and Fourteenth Amendments that it demonstrate that the consent was fact voluntari- coercion, express and not the result of duress or ly given, of fact to implied. question or Voluntariness is circumstances, and determined from all the while of a refuse is a factor to be subject’s knowledge right to account, required taken into is not prosecution knowledge prerequisite demonstrate such as a to estab- 248-49, consent. at at lishing voluntary Id. S.Ct. 2058-2059.

Thus, the mere fact that here the lower court found that appellee’s “knowing voluntary” consent was not and does applied not mean that an incorrect standard. To the it is clear from the court’s discussion that contrary, court considered the fact that was not informed of appellee his to refuse to consent to the search as one right only Thus, factor all of the other circumstances. among while prison the court did cite the fact that did not utilize a “[t]he form,” consent which would have informed presumably search, appellee right of his to refuse to consent to discussed, detail, generally intimidating court also atmosphere prison, passage through locked doors, presence sergeants, of the uniformed and the strip isolation of the search area.

Indeed, against posi- Schneckloth is the Commonwealth’s makes tion, plain for the Court’s discussion there how is, prove voluntary setting it is to consent when difficult here, At it was coercive. issue Schneckloth was as The busy highway. of an automobile trunk beside a search effect question reserved the “what expressly Court might custodial conditions have on a search authorized consent,” 247 n. at solely by alleged id. at S.Ct. settings 2058 n. and out that some are “inher- pointed ently” “presumptively” coercive: case, any inherently this there is no evidence of from the of the police

coercive tactics—either nature or the environment in it took questioning place. which Indeed, since consent searches occur on a normally will person’s familiar territory, specter own incommuni- police cado in some remote station interrogation house is simply inapposite. believe, There is no reason to under here, present circumstances such as are that the response policeman’s coerced; to a question presumptively is, therefore, there no reason reject the traditional test determining person’s response. the voluntariness of a Miranda, course, did not investigative question- reach ing of a person not which is most custody, directly search, analogous to the situation of a consent and it did not indicate that such assuredly questioning ought 248-49, be deemed coercive. at at inherently Id. S.Ct. (footnote omitted). 2058-2059 Watson, 411, 424, And see United States v. 423 U.S. 820, 828, (consent (1976) S.Ct. 46 L.Ed.2d 598 search valid “no promises where made to and no indication of [accused] more might subtle forms of coercion that flaw his judg- ment. He had been arrested and in custody, but his street, consent given public was while on a not in the station.”). police confines Supreme emphasized Our Court has also difficulty Thus, in proving voluntary setting. consent a coercive in Smith, 220, (1977), 470 Pa. 368 A.2d 272 the Court said that “custody coupled when with other

300 the conclusion necessitate normally

coercive factors will Id., 228-229, 470 Pa. consent is not effective.” 368 that the 278 v. Pa.Su Pytak, A.2d at 277. And see Commonwealth (1980); v. 476, A.2d 640 Commonwealth Ct. 420 perior (1975); 154, A.2d 414 336 Dressner, Pa.Superior 232 Ct. 163, 336 Pa.Superior 232 Ct. Griffin, v. Commonwealth Torcia, 1 (1975) also Wharton’s Criminal A.2d 419 See . § (1974) “obviously is (prosecution’s 181 burden Procedure given was while the claimed consent greater where in custody.”). under arrest or otherwise accused was fact of in order. While the further observation is One coercive, it in some cases itself will custody inherently coercive- facts that enhance the by other accompanied be LaFave, 2 Dressner, See supra. ness. v. Commonwealth § 8.29(b) (1975) (uniformed guards, Search and Seizure Here, there firearms, setting). interrogation, stationhouse in an facts. was searched Appellee such other many are Wolfish, Bell v. deep prison. room within See isolated (1979) 537, 1861, 1873, L.Ed.2d 447 60 441 99 S.Ct. U.S. center, or a custodial (“Whether jail, prison, called a of freedom of is to detain. Loss facility purpose a facility.”) inherent incidents such privacy choice and are than a station- Thus, coercive even setting was more State, Fla.App., pet. house. Hackett v. So.2d See (Fla.1980) station coer- denied, (police was So.2d leave”). Appellee free to was setting because “not cive guards. of two uniformed presence asked to undress under rights his constitutional Also, he not advised of cases, subject fact that the was so In other Miranda. “the most fact persuasive has considered advised been granted despite voluntarily that a consent was concluding or an otherwise atmosphere of an arrest” the coercive Tribblett, 242 Pa. v. situation. Commonwealth custodial 164, 166-168, A.2d See Ct. Superior (accused “repeated- supra v. Griffin, also Commonwealth v. Rich- rights”); Commonwealth apprised of Miranda ly of constitu- explanations” ard, (troopers “repeated supra Dressner, (accused supra rights); tional an experienced policeman “who doubtless had full knowledge of the constitutional rights attach”). which Fi- nally, appraising voluntariness it may important be whether the “facts indicate the consenter believed the evi- dence to be so well concealed that it probably would not be discovered.” Dressner, supra Pa. 158, Super, at Here, 336 A.2d at 416. appellee must have known that the marijuana discovered; would be it fell out shoe, of his and he had been informed by Sergeant Walker that the search would require him to strip. Torcia, 1 Cf § Wharton’s Criminal (1974) Procedure (citing cases from other jurisdictions finding consent genuine “where the accused believes that the incriminating evidence or contra- band so well concealed escape detection”). as to [is]

The lower court’s finding that appellee’s consent to the search was not voluntary is therefore not only supported by record, but is consistent with other decisions involving the issue of voluntary consent in a coercive setting.

No doubt anticipating this holding, the Commonwealth makes an argument. alternative Even if consensual, not argues, the search of appellee was justified under the Act § 11, § of May 1911, P.L. 61 P.S. pro- which vides:

The warden superintendent or prison is hereby authorized to search or to have searched person any coming to the prison visitor, as a or in any other capacity, who is suspected of having any weapon or other imple- ment which may be used to injure any convict or person, inor assisting any convict to escape from imprisonment or any spirituous or fermented liquor, drug, medicine, poison, opium, morphine, or any other kind or character narcotics, upon his person. The lower court rejected this argument. It held that the Act must be construed as consistent with the Fourth Amendment; that this meant that the prison officials had to probable have cause to search; conduct the and that here they did not. Slip op. at 1. While we agree that the Act did reach that appellee,

not search of we justify strip from court’s. reasoning conclusion different the lower the Act certainly The lower court was correct that Amend must construed as consistent with the Fourth ment, Assembly may provide pro for the not less General tection than is afforded the United States Constitution. follow, However, not in our that the opinion, prison it does cause” to search “probable appellee. officials had have Act, superintendent prison Under the “The warden or of the is to have searched any person coming ... authorized ... having the is of ... narcotics prison suspected any ... who added.) (Emphasis summary, ... his In the upon person.” language view of the lower court was that this should be mean, upon probable construed to “who is believed cause ” arguably ... narcotics .... While view is [to] hav[e] correct, to a different persuaded we are nevertheless view.

The Fourth Amendment of United States Constitu- tion, as is also so of Article 8 of the Pennsylvania Section Constitution, prohibits only “unreasonable searches and sei- 648, 653-654, Prouse, zures.” See Delaware v. U.S. 1391, 1395-1396, (1979) (essential pur- S.Ct. 59 L.Ed.2d 660 pose proscriptions of the the Fourth Amendment is to exercise of impose upon a standard of reasonableness officials); discretion by government Wolfish, supra Bell v. at at 1884. The we must question U.S. S.Ct. whether, in authorizing decide' therefore seems to us to be narcotics, person only “suspected” having the search of a of In the Act of 1911 authorizes an “unreasonable” search. prison other words: If it be reasonable for officials to may narcotics, “suspected” having search a then person only to construe the Act as consistent with the Fourth Amend- ment, it, necessary it is not to read into as the lower court did, requirement prison officials must have search. It “probable only necessary cause” to conduct a Act, first, the person to read into the must be “reason- narcotics; second, ably suspected” having that after informed that he make his he must being may before visit search, searched; person submit to a must consent to third, conducts that the search that the warden then appear, search.” As will we have must be “reasonable manner, that the Act should be construed this concluded so, the search here was unauthorized because but that even of the Act were not satisfied. requirements the first two re- remaining therefore do not consider whether the We of the Act satisfied. quirement The Court has said that Supreme United States precise test of defini “capable there is no reasonableness mechanical at application.” Wolfish, supra tion or Bell v. Rather, determining at 1884. reasonableness 99 S.Ct. balancing the intrusion on the individual’s Fourth involves Amendment rights against government’s need to con Prouse, supra; intrusion. Bell v. duct the Delaware addition, must “Courts consider Wolfish, supra. intrusion, the manner in which it is scope particular conducted, it, initiating place and the justification it is conducted.” at 559 Wolfish, supra which Bell cases). (citing

Here, that its interest in con- argues the Commonwealth con- trolling problem “prison smuggling” justifies of peniten- a for “a ducting persons visiting prison, searches of unique fraught security is a institution with sensitive tiary hazards, not the least of of contra- being smuggling these knives, The has drugs, band such as etc. state money, security eliminating smuggling interest in into and out high 10, Brief at penitentiaries.” Appellant’s quoting of Gettle- Werner, (W.D.Pa.1974). F.Supp. man v. 377 445 This inter- concern, est is of and has been held to great without doubt prisoners a visual search of after a contact justify cavity visit, also, complete Bell v. denial Wolfish, supra, detainees, contact visits by pre-trial Alleghe- Inmates of (3d Cir.1979) (denial Pierce, 754 Jail v. 612 F.2d ny County visits does not due process rights of contact violate § action). support so as to 1983 prisoners the other side of the balance is the intrusion on the On person visiting prison, especially privacy represented strip Although intrusion search. there are 304

more searches, intrusive types see Bell v. Wolfish, supra (visual search), cavity a strip search is “pro nevertheless a foundly French, intrusive event.” In Re 74, 106 Cal.App.3d 164 Cal.Rptr. See York, United States v. (5th Cir.) 578 F.2d 1036 denied, cert. U.S. 99 S.Ct. 619, 58 (1978) L.Ed.2d 682 (strip searches and body cavity searches among intrusive.). the most “Indeed, a strip search, regardless how professionally and con courteously ducted, is an embarrassing humiliating experience.” Hunter v. Auger, (8th Cir.1982). F.2d Balancing these interests is a difficult task. As one said, court has “A naked man in chains poses no risk. on, From that point every increase in freedom brings at least some decrease in security.” Valentine v. Englehardt, (D.N.J.1979). 474 F.Supp. However, after balancing the Commonwealth’s interest in controlling the flow of contra band into prisons, and a citizen’s privacy interest when he prison inmate, visits a we have concluded that the Act authorizes the prison officials to inform a person who wishes to visit an inmate that if he wishes to go through visit, with the he search, must submit to a so long as the officials reasonably suspect person of having narcotics in his possession. We do not believe that the Fourth Amendment requires that before so informing a prospective visitor, the prison officials must have probable cause to suspect possession of narcotics.

In thus adopting a reasonable suspicion, as contrasted to a probable cause, standard, we have the support of other Thus, courts. one court has held that a reasonable suspi- cion standard “is flexible enough to afford the full measure of fourth amendment protection without posing an insuper- able barrier to the exercise of all search and pow- seizure ers.” Hunter v. Auger, supra at 674 (adopting reasonable suspicion standard for strip searches of visitors in contact visits in prison). see, And United States v. Asbury, 586 (2d F.2d 973 Cir.1978) (reasonable suspicion standard adopted for strip border); searches at United States v. Afanador, (5th 567 Cir.1978) F.2d 1325 (reasonable suspi-

305 border); United strip searches at adopted for cion standard Cir.), (5th F.2d 991 cert. 551 Himmelwright, v. States (1977) 298, L.Ed.2d denied, 98 S.Ct. U.S. customs adopted for (reasonable standard suspicion searches); of border equivalent” as “functional searches (D.Ver.1981) (adopting F.Supp. Hogan, Wool searches). for prison suspicion standard reasonable prison the whether here therefore arises question The nar- appellee having of “reasonably suspect[ did officials ]” is instruc- v. Auger, supra, Hunter person. cotics on his to involved facts that case similar regard, in this tive this case. facts of appellants, all relatives there were several

In Hunter to gone prisons had to the who prisons inmates in Iowa had officials an inmate. Prison a contact visit with have at- the relatives would anonymous tips received prisons. into the On basis smuggle drugs tempting for a designated appellants of these tips, officials had none inmates It of the strip stipulated search. drug charges. or Two been arrested convicted inmates, strip were searched. wives of the appellants, both inmate case, of an In third mother brother searched; they therefore left without strip refused to be visiting. decided, as decid- just

First the court in we have Hunter The court ed, suspicion standard. adopt reasonable however, held, pass did not anonymous tips then that the had and that the searches muster even under that standard the court: therefore violated Fourth Amendment. Said from designation extent that search results strip To the alle- tip containing an uncorroborated bare anonymous drugs carry prison, of an into a gation attempt infringes unreasonably issue here strip policy search at the fourth amendment. rights guaranteed by on are that infor- reaching cognizant this conclusion we enormously prison their value to tips may vary mants’ or drugs duty intercepting faced authorities with we formulate For this reason do not other contraband. 306 designed encompass

one rule to all conceivable situations. note, however, an anonymous tip We that completely of indicia lacking reliability requires investiga- further tion and some measure of offi- corroboration to warrant Williams, action. See Adams v. 147, cial 143, 407 92 U.S. 1921, 1924, (1972). S.Ct. 32 612 Although L.Ed.2d in the of case tip context this need not meet the standards Texas, v. 108, of 12 Aguilar 1509, 378 U.S. 84 S.Ct. (1964); and Spinelli States, v. L.Ed.2d 723 United 393 410, 584, 89 21 (1969), U.S. S.Ct. L.Ed.2d 637 the informa- tion must possess nevertheless indicia of reliability suffi- cient give prison to officials reasonable to grounds sus- Williams, See v. pect drug smuggling activity. Adams 147, v. 1924; 407 at 92 at United States U.S. S.Ct. Afanador, 567 F.2d ^[1325] at 1328-29; Ballou v. Massa chusetts, denied, 982, (1st Cir.1968), 403 F.2d cert. 986 909, 1024, 394 22 U.S. 89 S.Ct. L.Ed.2d 222 Rea suspicion can exist if the con only sonable information tained is tip objective linked other facts known correctional authorities. 407 at at U.S. S.Ct. 1924; 403 986. A strip F.2d at search in the designation absence of any information buttress the assertion bald contained in anonymous tip not based clearly on reasonable suspicion drug It is smuggling activity. mere, based on more than a nothing unfounded suspicion conduct, and the illegal resulting strip search consti- standardless, tutes an exercise unconstrained discre- prison tion by officials in violation of the fourth amend- Prouse, ment. See Delaware v. 440 U.S. at 99 S.Ct. 1400. Hunter v. at Auger, supra (footnote at 675-76 omitted). agree it,

We with this reasoning. Applying we hold anonymous tip from a caller appellee female bringing would be marijuana County into Chester Farms Prison did not constitute suspicion,” a “reasonable corroborating without circumstances or some indicia of reli Anderson, ability. 481 Pa. (1978) A.2d (anonymous tip no with corroboration not down); pat justify suspicion reasonable Williams, (1982) 466, 444 A.2d 1278 Pa.Superior Ct. that corroboration no neighbors with (common report suspicion not reasonable bicycle ten-speed stole defendant Cruse, v. Pa.Superior Commonwealth 236 stop); to justify no corrobo (1975) tip with (anonymous 532 85, 344 A.2d Ct. vehicle). to search suspicion not reasonable ration Cf.: Williams, 407 1921, 32 L.Ed.2d v. Adams 92 S.Ct. U.S. corroborating cir with (1972) informant (anonymous 612 LeSeuer, v. Pa.Superior 252 cumstances); (ibid.). (1977) appellee The search A.2d 127 Ct. 382 Amendment, and, turn, the Fourth therefore violated the Act of 1911.7 said, suspicion of reasonable requirement the

As we have Act of 1911. If the of the only requirement is not the had suspicion appellee that officials had a reasonable prison MONTEMURO, Judge Judge Judge joined by CAVANAUGH 7. ORILLO, Judge joined by Judge would hold McEWEN and WIEAND Judge opinion suspicion proved. In his WIEAND reasonable was that corroborating tip though the were "innocent argues the that even facts nature,” they to establish reasonable were nevertheless sufficient WIEAND, Concurring Dissenting slip op., J. at 902. suspicion. reasoning. anonymous An this seems to us to be after-the-fact But given day, given A will do tipper may police hour of a tell the that at a (like may something perfectly legal prison), and also tell the visit a (on drugs. guess) will have The fact police of a wild that A the basis activity is not a basis for a legal stated hour that A then does the at the activity legal suspicion drugs; visit is that in that A has A’s reasonable activity. illegal For the reasona- way no corroborates existence greater police suspicion no than that of their can be bleness is, source, and the source’s police who the source and the don’t know guess. a wild The fact suspicion unreasonable—it was based on happened police’s, to tipper’s suspicion, and the unreasonable that irrelevant, suspicion is an antecedent re- right for reasonable be is Cruse, supra, just as the fact that an quirement, see Commonwealth v. person when he arrests finds contraband on the defendant’s officer home, defendant, home when he searches or in the defendant’s probable had cause for to the issue of whether the officer is irrelevant arrest, search, Forsythe, F.Supp. see United States v. or the (A up); (D.C.Pa.1977) by it turns Com- is validated what search not (1975) (Search, Sellers, Pa.Super. A.2d 689 monwealth outset, by into valid search illegal can never be transformed at addition, uncovered). arguendo even if it be assumed evidence suspicion, still the search was invalid. For that there was reasonable requirements suspicion only that must be satisfied. See one of the discussion infra. marijuana, they had would had appellee then have to advise he visit, that if wished to make his intended they would point, appellee search him. At that would a choice: he have visit, making could leave without his as did mother and brother Hunter v. Auger, supra; or he decide could visit, in go ahead with the which event prison officials would be authorized the Act to search But in him. event, the search would have be conducted in manner appropriate particular to the circumstances. imagined in may

Cases which the issue be decided the appropriateness example, would be of the search. For reasonably could a male prison require official female who to visit an inmate to a search? strip wished submit Or required would official be Act to to some resort way ensuring alternative that the female visitor would be as, to smuggle marijuana into the prison, unable exam- matron, ple, strip a search conducted a or by a non-contact visit in which the and the inmate separated by visitor were a Hunter Auger, supra. See v. Here, solid screen? how- ever, do not to any questions. we need consider such For prison here the presented officials never with the appellee without leaving making alternative a visit.

Instead, any without suspicion appellee reasonable marijuana, had without permitting and him to leave the brother, prison visiting without his him they conducted the Mud Room and there him required strip. This conduct was the Act.8 by unauthorized v. Lapia Commonwealth

In panel, order of the quashing vacated, is appeal, and the order lower court is affirmed. Dugger order of the lower

court is affirmed. WIEAND, Judge opinion joined by Judge 8. Judge in an and McEWEN CIRILLO, appellant would find that consented to the search. Concur- However, J., ring WIEAND, judge and Dissenting Slip op. at 316. otherwise, and, testify who saw the witnesses and heard them found 293-298, explained, supra pp. as we have finding sup- since his is evidence, ported by we are it. bound in which J., concurring opinion CAVANAUGH, files MONTEMURO, J., joins. dissenting opinion and

WIEAND, J., concurring files a CIRILLO, JJ., join. and McEWEN which and dissent- JJ., concurring CIRILLO, file McEWEN ing opinions.

CAVANAUGH, Judge, concurring: which Spaeth’s opinion Judge PART I of I with agree appealable is when evidence suppressing order holds that an terminates or that the order from the record apparent isit reluctantly I sodo handicaps prosecution. substantially rule, rather one that but good I this is not a feel that since out have no points we Judge Spaeth as since required is holding appealable our enlarge jurisdiction power I appealable. is not has established that precedent order do it forces us to rule since good not a it is believe review a doing, no we have business something or does does certain evidence contention that prosecution aas responsibility him in his handicap substantially not limited record do from a moreover we so prosecutor of the facts idea we have no whatsoever the sense that of the limited record outside the prosecutor to the available rule me that better It seems to hearing. suppression official that public of a the certification accept would be to determined that he has responsibilities of his the exercise terminate or evidence would suppressed the absence of the case. him in the handicap prosecution substantially II A in PART that Further, the conclusion agree I with order would suppression cases present both of are orders and therefore both prosecution, terminate the Spaeth’s disposition agree Judge I also with appealable. affirms the lower B, Lapia, which II order. suppression court’s I agree with v. Dugger as to Commonwealth

Finally, McEwen, and and Wieand, Judges Cirillo joined by Judge herein, facts of this case that the Montemuro Judge joining of on the drugs of suspicion presence support a reasonable However, of the person Dugger. of because extraordinari- searches, I ly strip ground intrusive nature of would always searches, such visitor which are conducted based on prison standard, voluntariness, i.e., on suspicion they reasonable can be conducted after the visitor has been advised of only leaving the alternative of without a visit. Since the lower Dugger court found here that did not consent to voluntarily search I affirm the order strip suppressing would evidence, in the thereby concurring Judge result reached by Spaeth.

MONTEMURO, J., in this joins opinion. WIEAND, Judge, concurring dissenting: and I Part I of the in the join Majority Opinion concur affirmance of the trial court’s order in Commonwealth v. Lapia.

However, I am agree prison unable officials Chester lacked a County suspicion” Billy “reasonable into Dugger attempting smuggle contraband or that prison Billy Dugger the search of was an unreasona- ,On response ble thereto. I hold the contrary, would search the order suppressing lawful would reverse marijuana seized. § § 11, 1911,

The Act of P.L. May 61 P.S. provides as follows:

The or superintendent prison hereby warden authorized to search or to any person have searched visitor, to the as a or in coming prison any capacity, other suspected having any weapon who is or other imple- may injure any person, ment which be used convict or or in assisting any escape convict to from imprisonment medicine, or any spirituous liquor, drug, or fermented poison, opium, morphine, any or other kind or character narcotics, his upon person. The was enacted because of the substantial interest statute which the state has in eliminating smuggling drugs, knives, guns and other into state penitentiaries contraband

311 prison offi- prisons. preserve security, and To institutional quickly decisively. cials must have discretion to act and in Indeed, said that the interest governmental it has been such activities is so detecting preventing smuggling “outweighs perfect that it the individual interest great 445, (W.D. Werner, 377 452 F.Supp. v. justice.” Gettleman Pa.1974). course, statute, interpreted consistently must

The be guarantees against Fourth Amendment unreasonable with However, test of reasonable searches and seizures. “[t]he capable precise under the Fourth Amendment is not ness In it re application. definition or mechanical each case of the need for the search quires balancing particular a personal rights the invasion of the that the search against scope particular entails. Courts must consider the intrusion, conducted, the justifica the manner which it is it, and the it is conducted. initiating place tion for which 1972, v. E.g. Ramsey, United States U.S. S.Ct. (1977); (other omitted). A 52 L.Ed.2d 617 citations deten dangers. tion is a serious facility unique place fraught with Smuggling drugs, and other money, weapons, contraband is all too common an occurrence.” U.S. Wolfish, Bell 520, 529, 1861, 1868, 99 S.Ct. 60 L.Ed.2d 447 The weighty governmental prison nature of the concern for significant yardstick against is a which “reasona security evaluation, making bleness” must be measured. such an moreover, potential it must be remembered that a visitor to prison penitentiary enjoy right or does not an absolute enter. A can enter if permission granted1 visitor only barred if may entirely represents he or she a “threat to the of the institution.” security County

Chester Prison officials information from received caller that telephone Billy Dugger was en route to visit brother, his an inmate at the Farms Prison. County Chester The caller that Dugger carrying warned uninflated containing marijuana balloons which he intended to deliver 4, 1835, April 1. Act of P.L. § 61 P.S. 630. § 93.74(a). 2. 37 Pa.Code § However,

to his identify brother. the caller refused to herself. the opinion For this reason the author of lead suspect concludes that it not that was “reasonable” in into the Dugger engaged smuggling marijuana was suspicion, There can no the reason- prison. be “reasonable” continues, anonymous warning unless an caller’s be ing corroborated “circumstances or some indicia of reliabili- ty.” in their tips may vary enormously

“Informants’ value drugs faced the prison duty intercepting authorities with or other contraband.” Hunter v. Auger, 672 F.2d (8th Cir.1982). Thus, may “tips” it be that some are so lacking urgency, general, obviously in so so based on rumor in lacking reliability they safely indicia of that can be authorities. These no immediate ignored by prison require However, response. their number is few. Most relatively “tips” require response. prison Where authorities receive an is then on anonymous warning way contraband its prison, warning to the can such a at their they ignore only peril. factor,

If the of the situation is a so urgency determining Thus, also is the specificity of information received. in suspicion may dependent part existence of reasonable lack thereof in the upon specificity or information A provided. weighted lack of was specificity heavily against suspicion generated by reasonableness supra. Hunter v. in In the Auger, anonymous tips instant case, however, the information was It identified specific. visitor, route, already who was en and also the inmate being specified visited. It being smuggled contraband concealed, and described the means which was as well smuggled as the manner which it was to be into the informant, Except for the name of the the factual prison. imparted prison specific, information authorities was full complete. The information thus also imparted was corroborated of innocent details part by by prison observations made fact, Billy Dugger, authorities. arrived to visit his broth- call. This inmate, anonymous time after er, a short informant’s sure, observation, did not corroborate to be substance a controlled carrying Billy Dugger tip corroboration, in the absence Such person. concealed on his immediately was not by appellant, carelessness gross had ob- Moreover, if been such corroboration available. merely suspicion. tained, longer no have been there would the lead type required by corroboration Factual Dugger’s cause for probable have established opinion would immediate arrest. matter, inno- instant albeit facts in the

The corroborative under the nature, were, in sufficient my judgment, cent Prison suspicion. to establish reasonable circumstances impart- the caller had that reasonably could believe officials action to prompt required information which ed reliable to his smuggling contraband Dugger from prevent Billy v. compare: and United States brother. See incarcerated (6th Cir.1981); States v. 854 United 650 F.2d Jefferson, denied, 454 U.S. White, (D.C.Cir.1981), cert. 648 F.2d 29 (1981); v. 924, 424, L.Ed.2d 233 United States 102 S.Ct. 70 (1st Cir.1980); v. An- Perez, United States 625 F.2d 1021 denied, 444 Cir.1979), U.S. drews, (6th cert. 600 F.2d 563 (1979); 878, 166, 108 v. Hasen 100 62 L.Ed.2d State S.Ct. Webb, 398 (Me.1981); v. So.2d bank, 425 A.2d 1330 State 566, 1329 (Fla.1981); Kea, 61 606 P.2d 820 v. Haw. State 568, 271 N.W.2d 503 (1980); Tooks, 403 Mich. People v. 118, (1978); P.2d 165 (1978); Barton, 92 N.M. 584 v. State 231, (1978); 244 346 State, S.E.2d Ga.App. Radowick v. 145 920, (1974); Hobson, People 523 P.2d 523 v. 95 Idaho State 1, N.E.2d 581 335, 283 229 20 N.Y.2d N.Y.S.2d Taggart, v. Anderson, 481 Pa. (1967). See also: v. 292, (1978). 392 A.2d 1298 reasonableness of the seek to determine the

When we must balance the officials we by prison search conducted security against in prison interest legitimate governmental searches. free from unreasonable right an individual’s to be 523, 534-535, Court, 87 387 U.S. Municipal v. Camara (1967); 1733-1734, 1727, 18 L.Ed.2d 930 Common- S.Ct. 314 107, 111, 875,

wealth 453 v. Pa. 307 A.2d Swanger, 877-878 (1973); Sheridan, 278, Commonwealth v. 292 Pa.Super. 285, 44, (1981), 30, A.2d granted allocatur April 1982. scope “Courts must consider the of the particular intrusion, conducted, manner which it is the justifica- it, tion for place and the in which initiating it is conducted.” supra. Bell v. order Wolfish, to be reasonable a search of a must prison visitor be consistent with the type visit, circumstances of nature the contraband being sought, and manner in which contraband is believed to have concealed. The type been scope search should be commensurate with the difficulty of dis- covery danger prison and the that security will be breached. To reasonable, be the search must “related in scope which justified circumstances interference in first place.” 13, Berry, 8, 305 Pa.Super. 4, (1982) 451 A.2d quoting Ohio, 20, Terry 392 U.S. S.Ct. L.Ed.2d 889 It has been argued by appellee strip search not reasonable (1) because the Commonwealth failed to prove that appellee intended to have a contact visit his with (2) brother or a strip search was the least intrusive means to insure that institutional security pre would be served. These contentions do not light withstand the close and analysis. examination In first place, Pennsyl prison vania regulations provide all visits shall be except contact visits in exceptional circumstances.3 With provides: 3. 37 Pa.Code § 93.73 Number, time, place 93.73. § and of visits. permitted Inmates shall be to have visits as often as the situation at the allow. institution will Visits shall be of sufficient duration to be of value to both inmate and Each visitor. inmate and visitor provided copy visiting shall be of internal rules in accordance following: with the (1) Visiting days. permitted Visits every day year. shall be of the (2) Visiting Morning visiting hours. and afternoon be hours shall Evening may maintained. visits be maintained. (3) Length of visits. Visits shall no be of less than one hour Longer periods may depending duration. be allowed on inmate’s

program space. status and available search, the Fourth respect to the intrusiveness or a total of intrusion require Amendment does not absence in prevent interest inoffensiveness. Governmental perfect institutions, already as we have ing smuggling penal into total, unre observed, outweighs visitor’s interest How, then, shall authorities re prison strained freedom. that a visitor is suspicion when there is reasonable spond prison into the engaged smuggling marijuana presently on his person? it in deflated balloons hidden by concealing yet disclose such contraband and type of search will What considered Having the least intrusive search? constitute available, I persuaded am relatively few alternatives strip County search conducted the Chester Prison officials reasonable and consistent with Fourth principles.4 Amendment (4) Frequency per per of visits. One visit inmate week shall be may permitted

permitted. program unless the Additional visits be inmate’s impractical. status makes it (5) Number of visitors at one time. The number of visitors an may larger any inmate have time shall be limited to five. A at one may permitted depending upon space. number be available (6) approval Special visit. Provisions shall be made for the of a may special approved infrequent persons at who not be on visit intervals family list who a substantial distance and for a have come seriously injured Special shall visit to a approved only by ill or inmate. visits Superintendent Deputy Superintendent. or (7) setting Setting with for visits. The for visits shall conform following provisions: (i) Visits shall be held in a relaxed manner under official observa- tion. (ii) Visiting living type furnishings. rooms shall be set with room (iii) appropriate picnic furnished with tables An outdoor area provided. should also be (iv) may meeting The inmate and visitors embrace when may side-by-side. The inmate hold small departing may sit lap. children on his (v) may The or drink items sold at the inmate and visitors eat institution. (vi) Family-day encouraged whereby visits are the visitors will be permitted bring a basket lunch and share with the inmate. (Emphasis supplied.) (D.Vt.1981), F.Supp. United States Hogan, 4. Wool upheld policy District Court for Vermont the reasonableness of a of a anyone facility required strip state correctional which searches of wishing to exercise a visit with an inmate. contact Prison, at the he appellee County When arrived Chester to move from the visitor’s area to a more requested was There he that he part prison. of the was told private contraband and would not be allowed suspected carrying strip his unless he submitted to a search. to visit brother being he no to searched but only express objection Not did his his began empty pockets he remove actually search, only shoes. If he had wished to avoid the he had request his to see his objection voice his withdraw fact, In he did not at time evidence a desire to any brother. the prison seeing terminate his visit or leave without his circumstances, these I would hold that brother. Under appellee readily consented to be searched. Consent can failure to his implied appellee’s object from or withdraw a contact visit with his See and request brother. Sihler, (5th compare: United States 562 F.2d 349 Cir. (1980); State v. 1977); Custodio, 62 607 P.2d 1048 Hawaii Martinez, (1978); State v. 59 Hawaii 580 P.2d 1282 Whisnant, People v. Mich.App. 303 N.W.2d 887 Still, procedure by prison must review the followed wé in appellant’s officials which resulted consent to be under the procedure searched. Was search reasonable it necessary circumstances? order to be reasonable was (cid:127) in the that the search be announced and conducted visitor’s other, I area? think not. Was it unreasonable that more private portions prison were secured steel doors kept which were locked? The answer is obvious. Would it post signs giving have been more reasonable to advance warning prison strip that visitors to the were subject However, Perhaps. suspected searches? where a visitor smuggling marijuana prison into the is told that he cannot search, he strip visit unless submits to a the absence of posted warnings wholly inadequate seems a basis on which procedure to declare the constitutionally unreasonable. 11, 1911, The Act of May supra, as limited Fourth guarantees, Amendment authorizes prison officials to con- duct a search any reasonable visitor reasonably suspect- smuggle of attempting prison. ed contraband into the The County possessed Chester Prison authorities reasona- suspicion appellee smuggling marijuana ble that was to his prison. Therefore, in they brother the were authorized to conduct a appellee’s person reasonable search of to protect preserve the of security prison. the The only realisti- cally effective search calculated to disclose a small amount drugs of To strip was a search. hold that prison authorities not conduct a may strip search of a visitor reasonably suspected drugs of concealing upon person would, his in effect, prevent prison from authorities intercepting any small, easily concealed contraband visitor wished to introduce the prison. into The Constitution not require does such I hold result. would that the strip search of Billy Dugger was lawful. It was a reasonable response to a suspicion reasonable that he smuggling was marijuana into prison. In the case, therefore, Dugger I would reverse and re- proceedings. mand further CIRILLO, JJ.,

McEWEN and in join this opinion. McEWEN, Judge, dissenting and concurring: I would hold as follows:

The order suppression of in both cases is appealable. I do not so conclude reason of by any joinder with the majority that the handicap substantial prosecution apparent on the I Rather, record. agree, subject exception noted, hereinafter with the majority expression this of court our colleague esteemed Judge Gwilym A. Price in Deren, 233 Pa.Super. (1975),

A.2d that: the District Attorney from one of the [W]hen counties of this appeal directs an from the sup- pression evidence, of we must accept such appeal as good Commonwealth’s faith certification that the case will be terminated or substantially prejudiced by order, such an if only determine [we should] suppression was proper. distinguished opinion portion

I JOIN affirms the order B. Jr. that Spaeth, Edmund Judge Pleas Com- by the Common Court entered suppression Lapia. monwealth v. Judge learned dissenting opinion

I JOIN Billy Dugger search of strip E. that the Donald Wieand the order entered direct that lawful and would be Dugger in v. Pleas Court Commonwealth Common proceedings. for further the case remanded reversed and issue, the basis namely, but one propose I to address appeal undertaken accept any should conclusion that we my of of suppression from an order the Commonwealth dis- evidence, shall hereinafter exception to the we subject careful, thoughtful majority expression cuss. While the exposi- a fine Judge Spaeth, provides colleague, our eminent nonetheless, must, I this position upon question, of tion dissent. respectfully, very of study commence of this issue must with

Any analysis Supreme our Court Commonwealth the decision of denied, 375 U.S. 56, 190 A.2d cert. 411 Pa. Bosurgi, there 204, 11 L.Ed.2d 149 It became 910, 84 S.Ct. of suppression an lie if the order the appeal clear that will or of the prosecution result in termination of will evidence 63, 190 Id. 411 Pa. at handicap in a to Commonwealth. an order appeal from any 308. It seem that A.2d at would must into one of fall the Commonwealth suppression by of following categories: in a and result termination suppression The order of will prosecution. conclusion of the termi- not in a suppression of will result While order of the Common- prosecution, nation or conclusion it can- handicapped because substantially will be wealth of the nature of its evidence and present not all available from the record. apparent is handicap not in a termi- suppression of will result the order While prosecution, or Common- nation conclusion can- handicapped substantially will because wealth all of present not its evidence and the nature of available handicap is from the record. apparent not here study upon category. Our focuses the third The opinion upon effect of the majority such cases will be review, uphold, appellate without of order of validity an suppression thereby force the Commonwealth to pro- ceed to trial without of all its available evidence.

The Supreme Court addressed as one class the Bosurgi categories aforementioned second and third it re- which ferred to as “the second situation” and described the handi- from the as so cap resulting suppression appar- order “not present”. ent nevertheless The sole focus of the [but] forcing attention of the court seemed to be the of anomaly proceed trial any situation appellate without the benefit of of trial evaluation court upon presentation restriction available evidence. We especially note that did court not draw a distinction appeal handicap apparent between where record the appeal where the handicap apparent is not but, reiterate, record we Supreme the Court treated this to the exception appeal rule as interlocutory applicable to the entire I group. am not satisfied that this court should appeals subdivide a class of twenty which re- years ago such Court, ceived close of scrutiny Supreme the when that court itself has not willing, since, been neither then nor to exception create the the I majority here carves. As contem- the plate precise language of the and opinion, proces- the of majority conclusion, sion the to its I am drawn from the by appeal march the the practical of and the echo of the fervent remarks afforded the Supreme Court to that portion of Bosurgi which addressed this class of appeal: situation,

In the second although the element of finality in the order is apparent, not so it is present. nevertheless right appeal Without a of in the Commonwealth in the situation, second the Commonwealth is completely de- of prived any to secure an opportunity appellate court of evaluation the the validity suppression of order of forces the which Commonwealth to trial all without of its the well mark may suppressed The evidence evidence. prosecution; failure in the and success difference between of secur- opportunity its only the Commonwealth deny to the evi- whether to determine review an ing appellate the unfair to highly is suppressed properly dence was rep- society which interests of and the the for preserve to and protect In zeal our resents. he is entitled to which right constitutional every accused of rights the preserve to neglect forget too often we An to consideration. which, too, are entitled society suppres- the order of validity of of the review appellate of the the denial the defendant whereas harm sion cannot the does harm Commonwealth. review right to such effects of an order practical the situations factual both to the give of evidence order suppression the granting of the grant to finality justify of as an attribute such in both situations. to the Commonwealth right appeal at 308. 190 A.2d 411 Pa. at Id. every phrase that each notion no doubt

There can be applica- as just Supreme Court concerned view this apparent is not handicap where appeal ble is so handicap where appeal as it is to record apparent. decision Bosurgi notes that correctly

The majority is to court appellate of how an question “did not address termi- evidence suppressing order determine whether (slip prosecution”, handicaps substantially or nates However, agree that we 4), I am not able opinion p. at a distinction by pronouncing a task to such may proceed itself failed Supreme Court when appeal á class of distinction, after it even any such that class measure intense but also study careful only the class not afforded implement our role to may well be While expression. a course by prescribing Supreme Court opinion of should be implementation such appeals, conduct of such The decision Deren holding Bosurgi. consistent with ex- the distress course, consistent with is, certainly pressed by the Supreme Court that any prosecution conducted appellate without review a trial court decision that narrows the presented; evidence to be on the other hand, the majority holding upon issue, view, this in my not so consistent.

While the majority states the Supreme Court has always made its determination in such cases on the solely basis of record, the majority concedes that in some cases the Supreme Court has not specifically acknowledged the record as the basis of the determination before concluding nothing those cases suggests that the court went outside the record. noted, however, It is to be that the cases cited by the majority were all appeals in which the initial determination of Supreme Court was the exist- ence of handicap. The fact is that there are no decisions by the Supreme Court that hold the appeal shall not be if heard the handicap is not apparent of Nor, record. view, our does Hill, 497 Pa. 439 A.2d 1153 (1982) so hold. The complete per opinion curiam court there reads:

PER CURIAM appeal The of the Commonwealth at No. Term, 1979, January is quashed, as we do not believe the order suppressing the weapon substantially impairs the Commonwealth’s case. Commonwealth v. Bosurgi, Pa. A.2d 304 Furthermore, despite the trial certification, court’s we refuse to accept the interloc- utory appeal of the accused and we thus dismiss the appeal at No. 307 Term, January 1979.

A study of Hill does not enable us to determine whether the court there quashed appeal (1) because the record made clear that the Commonwealth was not actually handi- capped by the suppression order, (2) or because the handi- cap was not apparent of record. Suppose, for example, an petitions accused the court to suppress six of his own inculpatory statements; suppose, further, the trial suppresses court one of those statements but refuses appeals the the five and Commonwealth suppress remaining statement; it is then the one suppression of of the order appeal court the appellate quash for the to possible quite from record itself the reason it is clear the for the that situation, handicapped. is In such not Commonwealth w;e handicap of the the record that the Commonwealth see from some- presentation may the be and while is not substantial remaining evi- the record reflects that the impaired, what handi- actually is not prosecution is such that the dence quash The should the order. court capped by suppression consistent disposition quite is appeal an and such such However, matter for an quite it is another Bosurgi. with appeal to an when that court cannot quash court appellate the record— to determine from is unable know—because the suppression harm that order of magnitude the the the the Commonwealth. upon presentation inflicts trial majority upon decision of the this It is view that the my the result of that decision too significant is too issue rest inference from permitted upon an awesome handicap found where Court Supreme cases equivocal or to rest nature Hill upon record decision. seek, by fairness unfairness can be avoided

If it is we accept standard that an upon the Deren would reliance as a faith certifica- attorney “good the district appeal by handicap to the suppression that the order of is a tion” quash subject right to the the court prosecution, is not the record reveals appeal where If, in such a suppression. the order of handicapped view situation, accused is inclined to the that counsel for the handicapped suppression is not attorney the district motion order, may quash thereby counsel utilize a to. to demon- responsive in a pleading the Commonwealth force protects adequately handicap—a procedure strate actual, handicap while enab- when the Commonwealth where appeal alleged handicap dismissal of the ling the is specious.

The majority notes the clearly principle established consider, we will not if determining appeal is interlocu- statement tory, any supported not by facts of record. I share the goal of but consistency hasten to note that the since, Deren standard can be hardly termed inconsistent in all of the situations cited there majority, pre- sumably a complete review, record available for appellate in while the classification we here as noted in study, opinions of our distinguished colleagues, Judge James R. Cavanaugh Judge Cirillo, Vincent A. the record availa- ble our review can be only quite limited.

The majority opinion upon this issue concludes with the message that “we Supreme leave Court whether the (at law should changed”, 279). p. While the majority here refers to a rule of appellate I procedure, would urge a similar hesitancy with regard to the change in the substan- which, tive law I very contend, respectfully is effected by the majority opinion.

And, finally, majority recognizes that a argu- forcible ment may be made that as a matter of policy the Common- wealth permitted should be to appeal suppression in order a case where the handicap does appear not of record. The earlier quoted spirited statement of the Supreme Court is just such an argument:

The evidence suppressed well mark may the difference between success and failure in the prosecution; to deny the Commonwealth its only opportunity of securing an appellate review to determine whether the evidence was properly suppressed is highly unfair to the Common- wealth and the interests of which society represents. In our protect zeal to and preserve for the every accused constitutional right to which he is entitled we too often forget and neglect to preserve the rights which, of society too, are entitled to consideration.

That argument is to my mind forcible, not only but is somewhat plea, and is certainly quite am, I convincing. therefore, compelled to this dissent.

CIRILLO, dissenting: Judge, concurring in Com- majority reached I concur the result dissent from Lapia, v. respectfully and I monwealth I Dugger. v. Initially, Commonwealth holding majority Com- of this Court holdings my view express 117, 375 A.2d 786 Pa.Super. Trefry, v. monwealth Deren, Pa.Super. (1977), and remain extant. (1975) should 337 A.2d 600 for our must determine that we concludes majority The alone, an order whether selves, of the record on the basis sup of a The record appealable. evidence suppressing ad only contains evidence though, hearing, pression a determination of is limited to hearing, which duced at in violation was obtained evidence specific whether The Com any statutory provision.1 or rights defendant’s at a suppression full case present not its monwealth does Thus, frequent for conviction. arguments make hearing or record suppression from the ascertained it cannot be ly to the Common evidence, if is available any, what other to cases, impossible Therefore, it would be many wealth. (given below in No. 323 provisions of Pa.R.Crim.P. 1. Under the hearing as suppression is limited part), record of a pertinent the follows: attorney may the (a) make a motion to or his The defendant alleged obtained in any to have been suppress to evidence court rights. of the defendant's violation hearing. at the (g) of all evidence adduced A record shall be made and impound record and the nature shall The clerk of court hearing disposing the motion shall and the order of purpose of the anyone except defendant and by anyone to the to not be disclosed counsel for the impounded remain thus parties. The record shall justice require its disclosure. the interests of unless going (h) burden of forward shall have the The Commonwealth challenged establishing evidence that the evidence and of with the was not obtained in rights. The defend- violation of the defendant’s so, and, thereby hearing, not may testify if he does does at such ant during right trial. to remain silent waive his hearing, judge (i) shall enter on the of the At the conclusion findings law as to fact and conclusions of a of record statement whether the evidence rights, violation of the defendant’s was obtained in statute, any make rules or and shall of these or violation sought. denying granting the relief an order or suppressing the record whether an order determine from handicap substantially does in fact terminate or evidence 411 Pa. Bosurgi, v. prosecution. See: Commonwealth 204, 910, denied, A.2d 375 U.S. S.Ct. cert. L.Ed.2d 149

Furthermore, determining suppress- whether an order in mind keep is we must ing appealable, evidence following:

In our for the accused protect preserve zeal to every right constitutional to which he is entitled we too forget neglect preserve rights often of society which, too, appellate are entitled to consideration. An of the order of cannot validity suppression review right harm the defendant whereas the denial of the such review does harm the Commonwealth. 411 Pa. at 190 A.2d at Bosurgi, 308.

Unless the record affirmatively availability shows Commonwealth, other evidence to the which sufficient to conviction, a must obtain we assume Common wealth would of evidence.2 prejudiced by suppression Otherwise, we would have to remand to the lower court for record, more complete consequently expending already as judicial depriving overtaxed time and resources as well right speedy defendant his constitutional trial. By accepting appeal good such an as the Commonwealth’s faith certification that the case will be terminated or sub- order, stantially prejudiced by suppression we remain precedent within ambit we follow the set Bosurgi, the Court in Deren and Trefry, provide procedure we appeal which benefits all of not the criminal society, just defendant. I join the well-reasoned Dugger, Judge

Dissent of Wieand. Thorne, 122, 130, Pa.Super. 2. See: Commonwealth v. 299 A.2d J., (1972) (Cercone, dissenting). 373-74

Case Details

Case Name: Commonwealth v. Lapia

Court Name: Superior Court of Pennsylvania

Date Published: Feb 4, 1983

Citation: 457 A.2d 877

Docket Number: 1043 and 2696

Court Abbreviation: Pa. Super. Ct.