*1 OLSZEWSKI, dissenting: Judge, language I I find that the contract respectfully dissent. work,” performance resulting out of or from “arising duties. Ro- minor deviation from his Roland’s encompasses him to be close required in this case land’s work GESCO and caused which malfunctioned elevator proximity his part taking That Roland was break his death. not, in my is during the the work performance lunch hour the contrac- to take Roland’s actions outside opinion, sufficient Therefore, I find that would tual definition “the. work.” obligation applies this case. indemnification Pennsylvania, Appellant, COMMONWEALTH of QUILES, Appellee. George R.
Superior Pennsylvania. Court
Argued May 1992. 4, 1993.
Filed Jan. *3 Com., Atty., for Grigsby, Philadelphia, Karen L. Asst. Dist. appellant. Neff, Philadelphia,
Marc for appellee. ROWLEY, WIEAND, Judge, Before President BECK, MCEWEN, SOLE, MONTEMURO,1 TAMILIA, DEL JOHNSON, KELLY JJ.
KELLY, Judge: alia, determine,
In to upon we are called inter opinion must whether and to what extent law enforcement authorities inquire authority as to an individual’s actual consent Justice, participate Judge, now Montemuro not in this 1. Former did decision. into a We conclude that law enforce- police entry dwelling. question ment authorities need not an individual as to his consent, actual once that individual has con- her we reverse premises. Accordingly, sented to an of the matter to the suppression order and remand the instant opinion. trial court for consistent with this proceedings
I. STANDARD OF REVIEW appeal the Commonwealth’s from reviewing When court, suppression an adverse decision of the we must consider much of “only the evidence of the defendant’s witnesses and so for as read the context of the prosecution the evidence a whole remains uncontradicted.” Commonwealth record as Smith, fact, findings evidence the trial court’s supports When the conclusions drawn from may only legal we reverse when Id. It is the sole province these facts are erroneous. court, fact, credibility finder of suppression weigh all, Thus, Id. the fact finder is free to believe the witnesses. testimony. or none of a witnesses’ part II. FACTS AND PROCEDURAL HISTORY only testify suppression hearing witness to at the testimony, sup- From this Sharkey. Police Officer John which, fact pression following findings court made the record, support adopt them to have we finding appeal. of this purposes [sic], September Sharkey
1. That on Police Officer information from a confidential informant that an received *4 in engaging male known as Juan was the sale of Hispanic narcotics from the location of 2922 North Franklin Street. 24,1988, at August Sharkey present 2. That on Officer was 2922 North Franklin when a search was conducted of Street drug which revealed narcotics and other premises said paraphernalia. Perez, September plain
3. That on Police Officer clothes, Franklin went to the location of 2922 North Street purchase an effort to cocaine. by Hispanic male told Officer Perez was 4. That Police purchase to outside the location to the corner to go because, Hispanic male as the of cocaine ounce quarter ounces left him, quarter any he did not have to indicated the transaction. complete not and could information, Officer Police of said 5. That as result affiant, and Seizure War- obtained Search Sharkey, as the 7, 1988, to search the September Number 64950 rant Franklin Street. 2922 North premises at p.m., 5:30 day approximately at 6. That on that same police other Sharkey company in the Police Officer Street to execute to 2922 North Franklin officers went had obtained. seizure warrant he search and door, re- knocked on Sharkey That Police 7. Officer to two minutes after one response approximately no ceived and conducted forcibly entered said and then and seizure warrant. pursuant search search as well as drug paraphernalia revealed 8. That said search currency. in U.S. approximately narcotics and $.145.00 his police returned to dis- Sharkey 9. That Police Officer and re- seizure warrant process search and trict said from a informant who stated phone call confidential ceived Franklin of 2922 North at the location was back Juan Street. Shar- p.m., Police Officer approximately
10. That at 7:30 officers, 2922 North key, along proceeded with other Juan. The arresting intent Franklin Street with the of an arrest warrant at possession officers were not time. door, Sharkey knocked on 11. That Police Officer he Whereupon female to enter. an unknown advised subsequently defendant was arrested. did enter arrest, evidence was taken Following physical his certain from his person. the suppres- 1-3. Because Opinion
Trial Court 11/2/89 Sharkey regard to be credible with found Officer sion court 11-12, we note see N.T. consent, July 1989 at the issue of *5 158 following Upon
the
uncontradicted
evidence.2
entering the
the
time and
their
premises
announcing
second
identity, Offi
fellow
Sharkey
cer
and a
observed male run
aup
officer
chase,
flight of
gave
stairs. The officers
following the male
bedroom,
into the front
and
him
observed
discard a black
male,
pouch
proved
leather
which
to contain cocaine. The
appellee,
later
identified
George Quiles,
as
was thereupon
arrested and
with
and
charged
possession
possession
of
substance,
intent
to deliver
and
a controlled
conspiracy.
facts,
From the
the
court
foregoing
suppression
found that
residence,
although the initial search of the
supported by
valid search
was proper,
subsequent
warrant
the
into
entry
premises
the
Accordingly,
was unlawful.
the court concluded
any
evidence
as a
of
entry
seized
result
this
must
therefore,
necessarily be
and that
suppressed
appellee’s arrest
Particularly
was unlawful.
relevant
to the instant appeal, the
entry
held that
court
the
into the home could not be supported
consent as
was no
by
“there
evidence which established an-
not,
dissent,
suggested
We note
by
engaging
2.
that we are
as
the
level,
improper
finding.
suppression
appellee
exercise of fact
At the
pursued
premises
justified
three
that the
theories:
of the
was not
circumstances;
by exigent
that the
the
of
was not
and,
consent;
justified
alternatively,
probable
that there was no
appellee. Appellee's
Support
cause
arrest
Brief in
of Motion
Suppress, July
carry
at 7-11.
police
To
its burden that the
lawful,
must,
Williams,
actions were
it
see
Commonwealth v.
(1988);
Verdekal,
Pa.Super.
551 A.2d
Commonwealth v.
(1986),
Pa.Super.
Subsequent Court, timely a by panel issues a determination of the October for en banc consideration granted was on petition 1991. following issues Commonwealth raises appeal,
On for our consideration. ERR IN SUPPRESSING DID THE LOWER COURT
1. DISCARDED ALMOST OF COCAINE WORTH $4000 PRES- DEFENDANT IN A POLICE OFFICER’S BY WHEN, AFTER THE OFFICER KNOCKED ENCE HOUSE, ANOTHER RESI- AT DEFENDANT’S CONSENT DENT THE HOUSE GAVE POLICE OF DEFENDANT, ENTER AND UPON SEEING TO OFFICERS, THE THREW DOWN DRUGS? THE ERR IN SUPPRESSING DID THE COURT 2. LOWER $4,000 OF SEIZED WORTH COCAINE ALMOST ARREST OF TO A WARRANTLESS PURSUANT HOUSE, THERE HIS WHERE DEFENDANT IN EXCUSING WERE EXIGENT CIRCUMSTANCES REQUIREMENT? THE WARRANT TO AR- DID HAVE PROBABLE CAUSE 3. POLICE DEFENDANT? REST Brief at 3.
Commonwealth’s THE PREMISES TO ENTER III. CONSENT Commonwealth that the trial court contends Initially, did not have lawful that officers concluding erred the Commonwealth Specifically, to enter the home. consent previous search having recovered evidence argues residence, it lived at the Rodriquez that Leslie suggesting that the female for the officers conclude was reasonable knock, following in” the officers’ was stating voice “come who, Rodriquez,. Leslie one resident the premises, possessed to the consent the home. Moreover, the Commonwealth contends that trial erred in concluding required the officers were an- prior nounce their to their Be- identity purpose entry. consensual, cause was the Commonwealth concludes identity pursu- announcement of purpose unnecessary ant to v. Morgan, (1987). We agree.
In v. Morgan, supra, law au- enforcement thorities, warrant, armed approached search the resi- detectives, Joseph Morgan. uniform, dence of not in Two door, knocked the screen the inner door being open. detectives, Morgan responded, “Who is it?” One of the ob- *7 inside, “Joe,” serving Morgan exclaimed Morgan which detectives, responded, in.” joined “Come on The two other by officers, home, entered the identified themselves and read Morgan. search warrant to search subsequent The uncovered narcotics, large drug of quantity paraphernalia and curren- cy. Morgan’s motion to was he suppress denied and was convicted The drug granted related offenses. trial court his trial, Motion for new that the finding officers who executed the search warrant had violated Pa.R.Crim.P. the “knock The specifically announce” rule. trial court found that Morgan lawfully had not consented to the officers’ knowing because consent could not voluntary given be identity absent party seeking entry of the and that party’s purpose entering. for On appeal, panel divided this Court Morgan, affirmed. Commonwealth v. 353 510 (1986). Supreme A.2d 754 Our Court granted the Common- wealth’s petition for allocatur. Pa. Supreme
Our began analysis Court its by recognizing law, statement, in,’ “as a appellee’s matter ‘come on cannot be construed as other than anything consent.” Common- Morgan, wealth v. at supra, Pa. at 1056. The Court then concluded no violation of Rule 2007 could occur by Morgan when officers were invited enter know did not Morgan Mr. fact that spite “in premises Id. there.” were why or the officers were who the officers instructed at 1057. Court 534 A.2d under these to entry prior of purpose An announcement to surren- the opportunity appellee to afford circumstances a “futile have been would peacefully premises der already surrendered had appellee inasmuch gesture” his consent. Id. original). (emphasis open an likewise reacted
Instantly, the officers made has Supreme As our Court on in.” to “come invitation to visi open invitation clear, an individual extends where he she or home, it immaterial or her is his tors enter authorities. to be law enforcement know the visitors does not in,” it later be to “come cannot knocking Having invited those solely the officers unlawful because was claimed that The trial their purpose. themselves and identify failed to concluded otherwise.3 when it erred Pennsylva Morgan holding the latest in a line 3. We note that the deception do not recognizing that ruse Supreme Court cases nia invariably Albrecht, e.g. 510 Pa. See Commonwealth v. vitiate consent. denied, 480 U.S. S.Ct. cert. (1987) (suspect's to search the trunk consent L.Ed.2d 801 valid, did not inform despite the uniformed officers the fact that his car incriminating was located in the they evidence suspect that knew the trunk); 1, 7-8, Brown, 437 Pa. (uniformed wanting deception as to the reason officer's gun relinquishment of the gun the consensual suspect’s unlawful); did not render Slaton, A.2d 5 but see Commonwealth *8 (failure change of (1992) agents disclose in the focus to of narcotics pharmacist’s prior search rendered investigation to their second their through invalid as obtained of his establishment consent to the search deception). despite may be valid recognized that consent has also This Court obtaining a identity in deception to motivation an officer's and/or privacy relinquishment interests. See Common- suspect's consensual 1185, 136, (1988) 117, Carelli, 1194 Pa.Super. 377 wealth v. wanting (officer’s primary to to wife reason to disclose the failure to officer’s would not invalidate her consent speak with her husband Markman, Pa.Super. v. 320 premises); the Commonwealth presence on 336, (1983) ("[cjonsent may be deemed volun- 341 misrepresents both his by police who tary procured officer even when Ginter, search”); making v. identity purpose in the Commonwealth (same); 9, (1981) v. Commonwealth Pa.Super. A.2d 289 432 1024 162 maintained,
Neither can it
successfully
be
as the trial
concluded,
that there was an absence of consent because
determine,
“there was no evidence to
or that
the police
determine,
inquired to
authority
the
of the female to consent
to their
when the
believed the
house was owned
by a
Opinion
male.” Trial Court
of November
1990
7-8.
Blair,
In
Commonwealth v.
Pa.Super.
Third-party
cases fall into four broad categories.
decision,
Previous to
cases
our Commonwealth con
(1)
cerned situations where:
consenting party
“su
had
perior
authority”
search,
party objecting
see
Latshaw,
Pa.
163
Devlin,
Pa.Super.
v.
(1982);
Commonwealth
A.2d
(3)
consenting party had
(1982);
the
see,
search,
to the
objecting
authority
party
to the
inferior
(1978),
Garcia,
v.
Pa.Super.
Netting,
in a
(1983) (third
interest nor control
neither
who has
party
conduct a
valid consent to
police
the
may
give
not
area of
the last
of
premises);
the
warrantless search
where a
situations
concerns those
consent cases
third-party
actual author-
as to the
reasonably mistaken
officer is
police
way,
his
stated another
entry;
ity
consenting
of the party
for
authority
reasonably
apparent
mistakes
police officer
the
his entry.
to consent to
authority
actual
omitted).
(footnotes
215,
determine
consenting
the status of the
party. Reliance on a
party’s
third
bald
in such
subject
assertion
situations could
any search to
remedy
of the exclusionary rule.
(footnote
omitted).
216-17,
at
Id.
Following on the heels of Commonwealth v.
supra,
Court,
the United
Supreme
States
in Illinois v. Rodriguez,
177,
2793,
497
110
U.S.
S.Ct.
no more violated when officers enter without a warrant
they reasonably
because
(though erroneously) believe that
person
who has consented to their
is a
entry
resident of
than it
premises,
is violated when they enter
without
they
warrant
reasonably
because
(though erroneously) be-
they
lieve
are in
pursuit
a violent felon who
is about
Mosel,
(CA1 1982).
escape. See Archibald v.
IV. PROBABLE CAUSE TO ARREST Having concluded that the lawfully officers entered the premises, we must now determine appellee’s whether arrest was lawful. The Commonwealth contends that probable cause justify existed to appellee’s warrantless arrest. Because the officers, armed with the knowledge large that a quantity drugs, drug paraphernalia and cash had previously been home, seized from the observed appellee flee aup flight of stairs following their purpose announcement of thereafter pouch, discard a which was found to contain co *12 caine, in plain officers, view of the the Commonwealth con cludes that appellee’s warrantless arrest was lawful. We agree.
Probable cause exists if the facts and circumstances within the knowledge officer at the of time arrest are justify sufficient to a person of reasonable caution in believing suspect has committed or is committing greater privacy rights to criminal defendants than does the United Moreover, Pennsylvania States Supreme Constitution. no Court deci- specifically rejects decision, Rodríguez.
sion In the absence of such we 'reject are controlling uninclined to otherwise of the United Aaron, Supreme Cooper States supra. Court. v. disposition regarding 5. Because of our the issue of consent to enter the premises, argument we need exigent not address the circumstances justified entry. the officers’
167 268, 585 A.2d 526 Pa. Rodriguez, v. crime. Commonwealth 536, Elliott, 546 (1991); Pa.Super. 376 v. Commonwealth 988 (1989). denied, A.2d 721 557 (1988), 521 Pa. 654 alloc. A.2d in a particular existed cause determining probable whether In or two individual at one situation, just will look not of the circumstances” factors, “totality consider but will arresting officer: to the they appeared if to determine situation a particular examine When we factors and their exists, all the we consider cause probable each individual effect, not concentrate and do total element____ as seen circumstances focus on the We also officer, and do not view of eyes the trained through the Finally, we must average might.... citizen as an situation cause, probable dealing questions with remember with dealing are dealing certainties. We are not we life on everyday practical considerations the factual act. prudent [persons] which reasonable 72, 83, Simmons, A.2d Pa.Super. v. Commonwealth Kazior, v. Commonwealth quoting (1979). only It is Pa.Super. activity showing, of criminal a prima and not probability, facie for a warrantless arrest. cause probable standard that is the Kloch, 563, Pa.Super. v. is one reason criminality when Probable cause exists only, or even the most inference; not be the it need able Kendrick, 340 e.g. inference. See likely, (1985) (probable cause criminal ... a belief [of any showing not demand “does false”); than Common likely true activity] correct more be (in Moss, wealth cause, fact that other sufficiency probable assessing does not dem from circumstances could be drawn inferences by police was drawn unrea that inference that onstrate sonable). repeatedly Commonwealth have As Courts cause “must be based of probable determinations emphasized, *13 analysis.” non-technical common-sense (1985). Pa. Gray, Taking a common herein, sense view the facts presented we are satisfied that the warrantless arrest of appellee was indeed proper. When the officers they entered the premises, were aware that two weeks prior to the in a question, date premises search of the pursuant conducted to a valid search warrant had large cocaine, uncovered a amount of cash and drug paraphernalia. arrest, Just hours prior appellant’s another lawful search had uncovered close to ten-thousand cocaine, Therefore, dollars worth of cash and a handgun. prior house, entering the officers knew large scale drug operation was operating out of this residence. Upon entering, officers had reason to believe that those inside were participants operation. appellee When fled upon seeing and hearing themselves, identify officers gave chase, officers During chase. appellee discarded pouch black found to contain cocaine. While each of these facts, if separately, considered may be insufficient to establish probable arrest, to justify combination, cause an taken probable these factors supplied the justify cause to appellee’s Dennis, arrest. 425, 431, Commonwealth v. 417 Pa.Super. (“facts 1016-17 justify insufficient arrest if considered seperately may combination supply cause”); probable Simmons, quoting Commonwealth v. Accordingly, we find that the officers herein had probable cause to believe had appellee committed or was a crime committing when he up fled of a stairs house known supply upon narcotics viewing hearing identify the officers themselves and and/or pouch. reasons, discarded black For the foregoing the order of the trial court suppressing the evidence seized as a result of the officers’ into the and subsequent arrest of is appellee reversed.
Order reversed. Case remanded for proceedings consistent opinion. with this Jurisdiction is relinquished. J.,
McEWEN, joined opinion SOLE, the dissenting by DEL J., joined the dissenting JOHNSON, opinion by J. *14 joined and opinion SOLE, J., dissenting filed a DEL J., opinion. JOHNSON’S, dissenting DEL joined J., dissenting and JOHNSON, opinion a filed SOLE’S, J., opinion. dissenting
JOHNSON, dissenting. Judge, by my esteemed Dissenting Opinion entirety
I its join in I agree A. Del Joseph Sole. Honorable colleague, the Pa. Morgan, 517 that Del Sole Judge Majority principally which upon that conclusion Majority’s relies, no basis for affords entry may be a to warrantless consent apparent in.” on found in the words “come Police August court found The suppression Franklin Street 2292 North at Sharkey present was Officer warrant, search was conducted when, a pursuant a search drug paraphernalia. narcotics and that revealed premises Sharkey received information 1988, Officer September On male known Hispanic that an a informant from confidential The same address. narcotics from that same selling was Juan clothes, Perez, to that address went day, plain Officer at the address An male Hispanic cocaine. purchase effort quarter-ounces of no more Perez that he had told Officer by purchased could be quarter-ounces that cocaine left but outside that location. to the corner going information, Sharkey obtained Officer upon this Based p.m., At 5:30 day. approximately the same search warrant and to the address other officers Sharkey went with Officer the door Sharkey knocked on Officer the warrant. executed two waiting approximately After response. no but received door to the minutes, open forced the officers about narcotics and which revealed commenced a search Sharkey returned currency. Officer U.S. $145.00 where, received a p.m., 7:30 he approximately at headquarters was stating that Juan a confidential informant call from phone residence. back warrant, officers re- Sharkey and other Officer
Without arresting the intent of Juan. address with turned to the officers knocked on the door and were advised to enter aby entering, then-unknown female. Sharkey After Officer arrest- Rodriquez George ed Juan Quiles. Physical evidence, subject of this appeal, Quiles. was taken from
Quiles moved sup- evidence taken from him be pressed on the basis the officers’ into the home was justified without warrant and not by exigent circum- stances. The argued initially the authori- ty conferred the warrant for the day first search that *15 subsequent extended to the entry, but that the search was also justified by exigent both consent and circumstances. that, suppression executed,
The court held once the warrant could not upon subsequent be relied to authorize entry. The court found that no evidence was presented from which to conclude that the woman in” who stated “come had actual authority to consent. The court further found that the offi- upon cer’s in person’s reliance an unknown consent was objectively not Finally, reasonable. rejected well, argument holding exigency that the pre- evidence sented not would such a support conclusion. appeal,
On
the Commonwealth has
position
abandoned its
regarding
continuing
warrant,
authority of the
but renews
arguments
its
as to consent and exigency. The Common-
wealth correctly
warrant,
asserts
even absent a
may enter a
for the
dwelling
purposes of making an arrest
where the
is
justified
either consensual or
by exigent
81,
Moye,
circumstances. Commonwealth v.
402 Pa.Super.
(1990);
York,
v.
Payton
406
New
445 U.S.
(1980).
S.Ct.
able cause
DeJohn, 486
(1979));
61 L.Ed.2d
*16
denied,
1032, 100
(1979),
32,
cert..
U.S.
Pa.
704,
individual
(upholding the
Court enumerated several considerations
it
which
found perti
1)
to a
nent
determination
exigency, including:
the gravity
2)
offense,
violent;
if
particularly
the reasonable belief
3)
armed;
that the suspect
showing
is
the clear
of probable
4)
cause;
strong
suspect
reason
believe that the
is on the
5) the
that
premises;
suspect
likelihood
if not
escape
will
6)
Id.,
and,
quickly apprehended;
peaceable entry.
The Commonwealth sets forth the Williams considerations conclude, does, urges us to as it that the circumstances sufficiently exigent justify were warrantless into the dwelling. The posits could Juan, reasonably have believed the person they whom arrest, upon went to would discovering flee that his residence had been if searched he were not apprehended swiftly. After setting forth the Williams analysis, suppression court concluded that had not exigency been established. it is While entirely not clear that the considerations deemed relevant Williams aid here, the inquiry I concur suppres- sion court’s determination that need to any arrest the suspects was not sufficiently urgent excuse the absence of a warrant. Quiles likely contention that to flee is belied fact he did not flee after search conducted at the *17 residence two weeks earlier uncovered narcotics. More signif- icantly, is no any there evidence the record that effort was made to obtain a new warrant the hours between the search in which probable cause to arrest was found and the return to Further, dwelling. the I am not persuaded that the officers could be until a warrant the premises to secure were unable any interest legitimate As I am unaware procured. I premises, to re-enter the foregoing a warrant by served was illegal entry dwelling into to have been would deem this supra. Payton, arrest in violation of to make an exigent consent nor circum- only I can conclude that neither suppression found the court. by on the facts as stances existed on Majority the by is misused Morgan In the same manner as consent, Majority’s apparent authority the issue of too cause to arrest assumes probable on the issue analysis reviewing a correctly asserts when Majority much. The a suppres- from an adverse decision of appeal conclusions court, may legal only sion we reverse when trial court are erroneous. by the facts found drawn from province is of the observes that it the sole correctly It also The fact find- weigh credibility. court to witness suppression witnesses’ all, or none of the part er is free to believe testimony.
Nevertheless, Rule of Criminal Procedure Pennsylvania 323(i) requirement suppression that the mandatory makes findings hearing judge the record statement upon enter Here, Honorable Russell M. fact and conclusions of law. incorporates Judge Nigro exactly Majority did that. Nigro’s Opinion. Majority of fact into its express findings on, however, opinion, goes attempts 155-159. It pages expressly suppres- add additional facts to those found court, suppression its belief that “the solely sion based on Judge It Sharkey court found Officer credible.” is true 6, 1989, Nigro, July from the bench: declared Sharkey] he honest THE COURT: I think [Officer with me start and truthful with. Testimony, July page
Notes of R.R. 94a. record, however, to nothing support There is findings of fact. Majority’s sponte supplementation sua As in Commonwealth v. recently Lagamba, this court stated citing (1983): Hamlin, *18 judicial The well established is that in principle reviewing a court’s the suppression ruling appellate by court is bound by factual findings supported may the record and it not substitute own for of findings its those the suppression court. This of trial principle deference to courts has one however, important appellate caveat courts not are bound by findings wholly lacking evidence. not, instance, appellate
An does court the first make findings of fact and of conclusions law.
Jackson, 298, (1975). 464 Pa. I have no which a permits found caselaw reviewing court to add to court, expressly the facts found the trial for by the of purpose permitting reviewing probable the court cause establish remain, be, an arrest. The focus must and on whether the the supports suppression evidence factual findings coint’s and might not on whether facts be lifted additional from record a order to reach different conclusion. Commonwealth v. Smith, (1990); Pa.Super. com- pare v. Haynes, appeal denied first Majority accepts by The facts found Judge Nigro suppression at the reconvened hearing. Transcript, July 17-19, pp. R.R. Majority opinion, 99a-101a. 155- pp. on, however, and, It goes solely 159. based its belief that credible, Nigro found Officer Judge Sharkey proceeds to suppression supplement findings court’s as follows: .... we add relevant following facts to those the trial Upon entering court. the second time and announcing their Officer identity, Sharkey and a fellow running officer observed male up flight stairs. The chase, gave following officers into male the front bed- room, and him observed discard black leather which pouch proved male, to contain cocaine. later identified as (cid:127) Quiles, appellee, George thereupon arrested and charged and possession possession with intent substance, deliver á conspiracy. controlled Majority opinion, pages Majority 157-158. The would seem- rule, create a ingly binding new on future evidentiary appel- all, or part free believe courts, trier fact is that the late any part he but once believes testimony, of a none witness’ thereon, the findings of fact express enters testimony balance, remaining adopt reviewing may then if had testimony just they as facts witness’ parts, of that modify I not to so prepared am been found trial court! *19 so that have worked judicial responsibility existing divisions over well time. the were that once officers argues
The Commonwealth concede, con- inside, Quiles’ I a that cannot lawfully point discarding quantity a substantial from duct—fleeing police him. cause to arrest police probable with drugs—provided argument. this Majority accept on the My colleagues esteemed as However, finding, a argument requires of this acceptance a he down fact, police from the and that threw Quiles that fled drugs. found to contain small, change purse later zippered made, have Nigro which could findings Judge are two These not make. These testimony, clearly the but did upon based cause to probable to conclusion of findings any are crucial outside the record findings only Since these occur arrest. my colleagues in join to on I am unable to appeal, certified us arguments. adopting the Commonwealth’s in this exigent I find consent nor circumstances neither to probable I find cause episode. warrantless Neither can male, his upon Quiles, solely a then-unidentified based arrest a of stairs and into front having up flight been chased small, change dropped zippered purse. he bedroom where so, court has set suppression this is where the Particularly findings fact but has short stopped forth extensive “fled” the or that he discarded Quiles up that stairs finding I Accordingly, officers. plain arresting view of the pouch distinguished The of the respectfully dissent. action must The court, Judge Nigro, was without error. suppression be affirmed. evidence should suppressing order SOLE, Judge, dissenting. DEL case Majority’s ruling the respectfully I dissent from in-home I its conclusion the support because cannot In Appellee, George Quiles, arrest of was valid. warrantless so ruling Majority the accepts argument Commonwealth’s the officers’ Quiles into home which was arrested was consensual and under such circumstances it unnecessary was announce their identity and purpose. conclusion, It is with Majority’s initial that the consensual, which I was must differ. Majority
The rests its on It begins decision two cases. citing Morgan, Commonwealth v. Pa. A.2d 1054 speaks requirement which the police identity purpose they announce their when are armed resident, with a search warrant and are told by the after inside, him observing to “come on in.” issue in Morgan duty comply concerned officer’s with the “knock and prior announce rule” to executing a search warrant. The that such compliance unnecessary ruled where the police already possessed they a warrant and where observed inside, defendant called defendant’s name and heard him in.” respond “come on these Because of factual differences, I Morgan view question non-instructive *20 whether, case, of in authority this the had to officers enter the warrant, premises, without a after and knocking hearing an unidentified voice to “come answering in.”
The Commonwealth asserts that it was in reasonable case for officers presume the to the female an- who. nounced “come in” possessed authority to consent to their entry they because had in previous recovered evidence a person search that a suggesting female lived at the residence. The Majority Commonwealth and the cite Commonwealth v. Blair, A.2d 593 to support the entry conclusion that the was consensual. The Blair court ruled that consent must be and judged objectively that it is reasonable for officers to person assume a answering door has to consent to the into residence. Blair,
In the officer knocked on the door of a residence seeking speak to to Mrs. Blair who suspected being was involved in an automobile accident. The door was answered by neighbor, identify Mrs. Blair’s who did not herself but permitted police the officer enter. this set of Regarding police facts the court stated that “the was reasonably officer answered the that the woman who when he assumed mistaken neigh- the Although admit him.” authority to door had actual from derived authority, evidence Blair in had no actual bor because suppressed into home was not the the officer’s made a “reasonable found to have police the officer was mistake.” in court’s decision reliance on this Majority’s
I find the our Blair prior decided Blair misguided because be Edmunds, in decision Supreme Court’s In Edmunds the court expressly A.2d 887 Pa. Su- United States undertaken rejected analysis Leon, 897, 104 S.Ct. preme Court United States 468 U.S. Fourth which concluded 82 L.Ed.2d evidence suppression not mandate Amendment does warrant, as constitutionally long defect result of a seized as a a warrant relying upon faith good as the officers acted Edmunds magistrate. by a neutral and detached issued I, 8 of the of Article Section purpose court looked Constitution, unreasonable prohibits which Pennsylvania seizure, purpose it from the distinguished searches exclusionary rule underlying misconduct deterring police distinction, upon this Fourth Amendment. Based under the as a result the Edmunds court ruled that evidence seized warrant must to a defective search pursuant search conducted “good reliance police officer’s faith” suppressed despite be strong, historical- The court remarked on the on the warrant. embodied our Constitution recognized, right to ly privacy and stated: rights, such even possess in this Commonwealth
Citizens her carrying faith” out his or “good officer in where a privacy or circumvents the inadvertently invades duties ‘good excep- To faith’ probable adopt cause. strictures *21 believe, virtually rule, exclusionary we would tion to the carefully been safeguards clear which have emasculate those over the Pennsylvania Constitution under the developed years. past 899.
Id. 586 A.2d at Pa. impacting I view the Edmunds decision negatively in Ed- holding in Blair. I believe the rationale this court’s munds cannot support ruling it is reasonable for police person officers to that a assume who answers a door has authority to consent upon based this reason- belief, able as to will authority mistake be overlooked. Edmunds teaches us the reasonableness of police conduct is irrelevant when examining protections the strict afforded the citizens of our this under Constitution.
In this case the officer’s knock was answered uniden- tified announcing female voice to “come in.” Absent evidence speaker, the officers knew the identity See Com- (where monwealth v. officer Morgan, supra, observed the defendant and his name defendant called before answered in”), “come evidence speaker absent that the had actual authority to consent the officers’ into the I premises, would subsequent find that a search was unconstitutional absent exigent circumstances. I
Because find evidence of exigent no circumstances in this case and because the presented officers were only with offering female voice them entry to the without evidence of actual person’s consent to their I entry, would seized in suppress evidence this case. Raymond Bester, Wife, v. E. BESTER and Judith His RENTAL
ESSEX CRANE CORPORATION v. RUSSELL CONSTRUCTION COMPANY.
Superior Pennsylvania. Court of
Argued Sept. 1992.
Filed Jan. 1993.