Lead Opinion
The "fruit of the poisonous tree" doctrine prohibits the admission of evidence at trial that was tainted by unconstitutional actions by law enforcement officials. Certain exceptions, however, exist to this doctrine. In this appeal by allowance, we consider whether a police officer's initial observations of a defendant at the scene of a crime, followed by a warrantless search of a cellular telephone left at the scene, which leads to the discovery of defendant's identity, taints the officer's subsequent in-court identification of the defendant. For the reasons set forth below, we find, under the fruit of the poisonous tree doctrine, that an identification made as a result of a warrantless search of the contents of a cell phone renders such identification tainted and inadmissible. However, a pre-search identification of a defendant may be admissible, if independent of the taint of the subsequent unconstitutional search. Thus, we affirm the order of the Superior Court.
On July 31, 2014, at approximately 6:50 p.m., Philadelphia Police Officer Paul Sanchez was on foot patrol with his partner on the 3500 block of Randolph Street in Philadelphia when he observed a Mitsubishi Galant operating with a heavily tinted windshield in violation of the Motor Vehicle Code.
When Officer Sanchez grabbed Appellant's arm, Appellant accelerated the car with half of the officer's body still inside it. Officer Sanchez repeatedly requested Appellant to pull over as Appellant sped away. Officer Sanchez released his grip on the driver, causing the officer to be thrown away from the vehicle and onto the road, and Appellant's vehicle ran over Officer Sanchez's right foot. The officer later required medical treatment for his injuries. At no time during the encounter did Officer Sanchez learn the driver's name or identity.
Immediately after Appellant fled the scene, Officer Sanchez and other officers returned to the location of the original traffic stop and retrieved a cell phone on the ground. Officer Sanchez opened the phone and accessed it, without securing a search warrant, in an attempt to ascertain the identity of the phone's owner.
Later that day, a detective assigned to the case ran a search of the name Angel Santiago through the National Crime Information Center ("NCIC") database.
Appellant filed an omnibus pre-trial motion seeking, inter alia , to suppress Officer Sanchez's anticipated testimony at trial regarding his out-of-court identification of Appellant from the criminal database photograph, and his in-court identification of Appellant at trial, asserting that any identification of Appellant by the officer would be solely the product of the officer's unconstitutional warrantless search of the contacts in Appellant's cell *916phone - i.e. , the fruit of the poisonous tree.
At the suppression hearing, Appellant did not contest whether Officer Sanchez had a sufficient opportunity to view Appellant, the clarity of the observation, or the officer's ability to examine Appellant's face. N.T., 2/19/16, at 39 ("It's not the fruit itself that is the issue. It is not the in court identification. Again, I am not arguing that the officer didn't have enough time to look at my client, and was it dark outside, you know, did you see his eyes, that kind of stuff. That is not what I am arguing. I am arguing that the flow that gets us to this point, that is what's tainted. That is the poisonous tree that makes the in court [sic]"). Thus, by Appellant counsel's own statements and actions at trial, he was not contesting Officer Sanchez's ability to view Appellant at the initial encounter in which he was both investigating officer and victim. Rather, Appellant's focus was that Officer Sanchez's in-court identification, even if initially founded solely on his encounter with Appellant, was tainted by his subsequent viewing of Appellant's NCIC photograph.
The Philadelphia County Court of Common Pleas granted Appellant's motion and suppressed both anticipated identifications of Appellant. The trial court, per Judge Kai N. Scott, first concluded that Officer Sanchez's warrantless search of Appellant's cell phone was unconstitutional. Moreover, the court found that the officer's testimony at the suppression hearing confirmed that the unlawful search produced the prison photograph, which enabled the police to confirm Appellant's identity, which led to Officer Sanchez positively identifying him out-of-court. The court reasoned that Appellant would not have become a suspect but for the illegally-obtained evidence.
More specifically, the court determined that, because an arrest warrant was issued immediately after the search of the cell phone, this demonstrated that the Commonwealth relied entirely on the illegally-obtained evidence of Appellant's identity as the means to effectuate his arrest and to procure his presence for trial. The court concluded that, even if Officer Sanchez were to identify Appellant in court, such testimony was inseparable from, and dependent upon, the warrantless search. Furthermore, the court reasoned that the officer's identification could not dissipate the taint of the unlawful search of the cell phone because the "very opportunity for the officer to identify [Appellant] by his physical presence in the courtroom is occasioned upon the exploitation of the warrantless search to secure his attendance." Trial Court Opinion, 7/18/16, at 12. According to the court, there was no evidence independent of the unlawful search that could establish Appellant's identity in court, as the officer's unlawful search and out-of-court identification were what enabled the officer to identify Appellant at trial.
Related thereto, the court rejected the Commonwealth's argument that Officer Sanchez was able to identify Appellant at trial on the independent basis of his observations of Appellant during the initial traffic stop. Possibly as a result of trial counsel's position, in granting Appellant's motion, the trial court did not find Officer Sanchez's initial viewing of Appellant at the scene of the crime to be defective. N.T., 3/18/16, at 5-6 ("The Commonwealth *917... talked a lot about the suggestivity of the identification, and that is one basis for exclusion identification, but it's not the sole basis that an I.D. can be excluded. I'm not suggesting that Officer Sanchez wasn't able to see what he saw."). Instead, the court concluded that no independent basis existed for the officer's in-court identification because the officer's testimony was inseparable from and dependent upon the warrantless search that he conducted of Appellant's cell phone. Thus, according to the court, the Commonwealth failed to establish that the officer's observations were "truly independent" of either his actions that constituted misconduct or the tainted testimonial evidence that his illegal search produced because the officer himself conducted the warrantless search, and such "unlawful search disqualifies his testimony on that matter at trial." Trial Court Opinion, 7/18/16, at 16-17. The Commonwealth appealed.
In a unanimous opinion, President Judge Emeritus John T. Bender, writing for a three-judge panel of the Superior Court, affirmed in part, reversed in part, and remanded the matter for further proceedings. Commonwealth v. Santiago ,
The court first spoke to the Commonwealth's blanket assertion that neither a defendant's presence, nor a witness's independent memory of a face, is suppressible, by tracing the history of applicable federal and Pennsylvania case law beginning with the United States Supreme Court's decision in Wong Sun v. United States ,
*918Next, the Superior Court turned to United States v. Crews ,
Finally, the court extensively examined this Court's decision in Commonwealth v. Garvin ,
Applying this decisional law, the Superior Court noted that Officer Sanchez's out-of-court identification of Appellant, i.e. , his identification of Appellant's photograph, was directly related to his unconstitutional search of Appellant's cell phone, and, thus, suppression of that identification was required.
*919However, the court went on to determine that Officer Sanchez could have identified Appellant in court, based on his observations of Appellant made prior to the unconstitutional search of the cell phone. Thus, the Superior Court concluded that, because the officer's ability to identify Appellant in court "existed independently of, and arose prior to, the illegal act which otherwise corrupted his out-of-court identification," the officer's in-court identification of Appellant should not have been suppressed. Santiago ,
As the parties agree, and we accept, that the Commonwealth's search of Appellant's cell phone was unconstitutional, we limit our review on appeal to the question upon which we granted allocatur . Specifically, we inquire whether the fruit of the poisonous tree doctrine warrants suppression of in-court identification testimony by a police officer who observed a defendant prior to an illegal search of that defendant's cell phone. Commonwealth v. Santiago ,
Appellant argues that the Superior Court erred in its suppression analysis. Specifically, according to Appellant, the Superior Court applied the "taint doctrine" to in-court identification testimony without making a case-by-case determination. Appellant's Brief at 11. Appellant further criticizes the Superior Court for solely relying on "overbroad language" in our Court's decision in Garvin that "[n]o law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accusers" and, "[t]hus, we conclude that the only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome." Id. at 12 (quoting Garvin ,
Appellant contends that it was the Commonwealth's burden, which the Superior Court ignored, to prove that the challenged in-court identification testimony had an independent basis which arose from the officer's observations and memory of the incident. Appellant stresses the officer's *920limited time to observe the driver-assailant who avoided eye contact and never got out of his car, and the absence of record evidence that Officer Sanchez ever gave a description of the perpetrator before being shown the illegally-derived police photograph. Further, Appellant claims that it was only through the illegal search of the cell phone that Appellant's name was discovered through the NCIC photo identification of Appellant. Thus, Appellant asserts that there was no showing by the Commonwealth that the officer's in-court identification testimony was untainted. For these reasons, Appellant requests that we reverse the Superior Court's decision and order the suppression of Officer Sanchez's in-court identification testimony.
In response, the Commonwealth first argues that Appellant's claim before our Court - that the in-court identification should have been suppressed due to Officer Sanchez's brief opportunity to observe the driver which was tainted as a product of undue suggestion - is waived, as Appellant's counsel at the suppression hearing specifically stated that he was not making this claim. In support thereof, the Commonwealth proffers counsel's statement at trial that "[i]t's not the fruit itself that is the issue. It is not the in court identification. Again, I am not arguing that the officer didn't have enough time to look at my client, and was it dark outside, you know, did you see his eyes, that kind of stuff. That is not what I am arguing. I am arguing that the flow that gets us to this point, that is what's tainted. That is the poisonous tree that makes the in court [sic]." N.T., 2/19/16, at 39. Thus, according to the Commonwealth, Appellant renounced any argument that Officer Sanchez's opportunity to view him prior to seeing the contents of his cell phone was deficient or tainted.
In any event, the Commonwealth asserts that such claim fails on the merits, as there was no evidence or finding of undue suggestion, and Officer Sanchez's observations of Appellant during the commission of the crime had a sufficiently independent basis for the officer's in-court identification.
Specifically, the Commonwealth first contends that, if evidence regarding identity , such as eyewitness identification testimony, is not suppressible, it follows that Officer Sanchez's in-court identification testimony regarding Appellant is clearly admissible. The Commonwealth continues that, even if only the accused's person is *921not suppressible, then Officer Sanchez's in-court identification is still admissible, as Appellant will be present in court, regardless of the cell phone search, and Officer Sanchez would be free to identify Appellant as the one he observed at the traffic stop, prior to the illegal search of his cell phone. While the Commonwealth acknowledges that suppression may still be required where an in-court identification was based upon improper actions by law enforcement, it asserts that no such allegation was made here, and the suppression court made no such finding. Even if there has been such an improper suggestion, the Commonwealth contends a subsequent in-court identification may still be admissible if there exists an independent basis for that identification and, here, Appellant's counsel effectively conceded that the officer's view of Appellant was unimpeded, of sufficient duration, and made at close range. Further, the Commonwealth points out that Officer Sanchez never misidentified Appellant or equivocated when identifying him. Thus, according to the Commonwealth, Officer Sanchez's testimony was far more than required to establish an independent basis for the in-court identification, and any questions regarding the reliability of that identification were for the trier of fact.
By way of foundation for our analysis, we clarify a few matters before turning to the legal issue before us. Initially, for ease of nomenclature, we characterize the three observations/identifications at issue. First, there was the initial in-person encounter between Officer Sanchez and the individual driving the vehicle on the streets of Philadelphia ("initial encounter") prior to the illegal search of Appellant's cell phone. Additionally, there are two proffered identifications made by Officer Sanchez of Appellant subsequent to the illegal search. The first was when Officer Sanchez identified Appellant after being shown the NCIC photograph of Appellant ("out-of-court identification"). The second identification is the proffered identification by Officer Sanchez of Appellant at trial ("in-court identification").
Furthermore, while Appellant has perfunctorily invoked the Pennsylvania Constitution as an independent basis on which to analyze this matter, he fails to employ the proper analytical framework announced in Commonwealth v. Edmunds ,
The Fourth Amendment to the United States Constitution, which mandates that searches and seizures be reasonable, provides as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. While prohibiting unreasonable searches and seizures, the Fourth Amendment provides no express guidance on how to treat evidence that is obtained by conduct that violates the Amendment's protections. Thus, we turn to an analysis of the relevant federal and Pennsylvania decisional law in this area.
Historically, the common law provided for the admission of all relevant evidence the government possessed, regardless of how it was obtained. As late as 1904, the United States Supreme Court reaffirmed *922this approach. Adams v. New York ,
Yet, within a decade, the Supreme Court for the first time departed from the common law rule regarding the admissibility of illegally-obtained property in criminal proceedings by adopting an exclusionary rule which required the suppression of such evidence. Weeks v. United States ,
Yet, eschewing an absolutist approach, Justice Holmes was quick to qualify his words, explaining that, "[o]f course this does not mean that facts thus [illegally] obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed."
Almost 20 years following Silverthorne Lumber , in Nardone v. United States ,
In broader fashion, the Court went on to set forth the burden-shifting analysis to be applied in exclusionary rule cases:
The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established - as was plainly done here - the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.
Finally, the high Court more recently endorsed a third exception to the fruit of the poisonous tree doctrine when it adopted the "inevitable discovery" rule in Nix v. Williams ,
The current expression of the doctrine was set forth in the Court's seminal decision of Wong Sun , supra. In Wong Sun , the Court extended the exclusionary rule to verbal statements that are the "fruits" of an unlawful search in violation of the Fourth Amendment. In that matter, federal narcotics agents unlawfully entered defendant's home at 6:00 a.m. and arrested him. In the course of making several statements which were inadmissible against him, the defendant told the agents the identity and location of a third party. The agents immediately went to the third party and obtained narcotics from him which were introduced at trial against the defendant. Holding that the narcotics were inadmissible "fruit," Justice William Brennan, writing for the majority of the Court, articulated the modern foundational standard, again eschewing an absolutist approach, and focusing on whether the evidence was obtained by exploitation of the illegal search, by independent means, or was purged of the taint:
We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint .
Id. at 487-88,
As the standards and exceptions to the fruit of the poisonous tree doctrine have evolved over time, the policy rationale for the doctrine has evolved as well. The doctrine was initially based upon considerations of moral values, equitable restoration, and judicial integrity. See Richard M. Re, The Due Process Exclusionary Rule ,
Thus, Silverthorne Lumber , Nardone , Nix , and, most recently, Wong Sun , *924reflect the evolution of the fruit of the poisonous tree doctrine, exceptions thereto, its policy underpinnings, and the standard by which this exclusionary analysis is to be conducted.
In a series of decisions following Wong Sun , the United States Supreme Court applied the fruit of the poisonous tree doctrine in the difficult area of eyewitness identification. Indeed, the specific question of whether identification evidence acquired subsequent to illegal conduct is fruit of the poisonous tree, and, therefore, subject to the exclusionary rule, has vexed courts. Thus, a survey of the relevant federal and state cases in this area is warranted.
Over 50 years ago, in Wade , supra , the high Court considered a question similar to the matter sub judice involving a pretrial identification deriving from an illegal arrest and a subsequent in-court identification by the same witness. The Court considered the import of an alleged bank robber's participation in a pretrial lineup, conducted in the absence of counsel, and whether a witness's subsequent in-court identification should be excluded. The case involved two men who robbed a Texas bank, and two bank witnesses who identified the defendant in a pretrial lineup conducted in a local county courtroom. While counsel was appointed to represent the defendant, he received no notice of the lineup. After explaining the potential risk of prejudice in a pretrial lineup, Justice Brennan, again writing for the Court, determined that such lineup was a critical stage of the prosecution to which the right to counsel attached, and, thus, the defendant's participation in the lineup in the absence of counsel violated his Sixth Amendment right to a fair trial.
Turning to the proper relief, the Court denied the defendant's motion to strike the identification by a bank witness at trial, until the government was given the opportunity to establish that the in-court identification was based upon observations of the defendant apart from the tainted lineup identification. Relying upon the test articulated in Wong Sun , the Court questioned whether the identification derived from the illegal lineup, or by other means sufficiently distinct.
In Gilbert , supra , a companion case rendered the same day as Wade , Justice Brennan more sharply clarified the parameters for admission of in-court identification evidence in light of Wong Sun . The high Court made a clear distinction between identification testimony that was tainted by an illegal lineup and that which had an independent source, such as an identification that preceded the illegal conduct. Specifically, in Gilbert , a bank cashier testifying in an armed robbery trial identified the defendant as the robber in the courtroom. Defense counsel moved to strike her testimony, asserting that her in-court identification was predicated in large part on her identification at a police lineup that violated the defendant's Sixth Amendment rights. The Court reasoned that the admission of the cashier's in-court testimony came without an initial determination that her identification of the defendant was not tainted by the illegal lineup.
The Court contrasted its treatment of this witness with witnesses whose testimony established the identity of the defendant solely as a result of the illegal lineup. The Court found that the testimony of these individuals was "the direct result of the illegal lineup 'come at by exploitation of (the primary) illegality.' "
Thereafter, in Garvin , supra , our Court was confronted with the question of whether an identification that was the result of an illegal arrest was tainted by that illegality. Specifically, the defendant robbed a beauty salon and two victims had ample opportunity to observe him, as they saw him for approximately five minutes in good lighting. After the defendant was illegally arrested, he was taken to the beauty shop where one of the victims identified him as one of the robbers. At trial, both victims made a positive in-court identification of the defendant. After confirming that the defendant's arrest was illegal, Justice Robert Nix, writing for the Court, considered whether the identifications should have been suppressed. Importantly, in his argument, the defendant did not differentiate between the in-court identification and the out-of-court identification, but contended that each was a fruit of the illegal arrest. The Court rejected the argument that the identifications should have been suppressed, *926offering that "[n]o law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accusors [sic]. Thus, we conclude that the only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome."
Applying Wong Sun , we reasoned that "the testimonial evidence did not derive from 'exploitation' of any illegality," and, thus, there was no reason to exclude the evidence.
Eight years later, the United States Supreme Court in Crews , supra , again addressed the suppression of an in-court identification of the defendant following his unlawful arrest in violation of the Fourth Amendment. At the Washington Monument, a woman was accosted in a restroom and robbed at gunpoint. Three days later, two other women were assaulted and robbed in the same restroom. The description of the assailant given by these women matched that given by the first victim. Police later observed the defendant who resembled the description of the perpetrator. After approaching and questioning him, he was allowed to leave. Later, a tour guide confirmed that the defendant looked like an individual he had seen on the day of the first robbery, and police arrested the defendant, albeit it was later determined this arrest was illegal. The defendant was photographed, and the first robbery victim was shown an array of eight photographs, including one of the defendant. This victim immediately selected the photo of the defendant as the individual who robbed her, and the two other victims made similar identifications. The trial court, recognizing the arrest was illegal, found that the victims' ability to identify the defendant in court was independent and untainted by the intervening identifications, and, thus, admissible. On appeal, the District of Columbia Court of Appeals reasoned that, but for the defendant's unlawful arrest, the police would not have obtained the photograph that led to his subsequent identification by the first victim. Thus, the court found that this victim's in-court identification was at least partially the product of governmental misconduct, and so should have been excluded.
The Supreme Court rejected this approach. Again writing for the high Court, Justice Brennan explained that, pursuant to Wong Sun and its progeny, exclusionary sanctions apply to any "fruits," including "tangible, physical material actually seized in an illegal search, items observed or words overheard in the course of the unlawful activity, or confessions or statements of the accused obtained during an illegal arrest and detention." Crews ,
*927Moreover, the Court found that none of these elements came by exploitation of the illegality, and compared this to the case where a witness's identity was discovered or her cooperation secured only as a result of illegal conduct by the government. Specifically, the Court reasoned that the victim's presence in the courtroom was not the product of any police misconduct. Furthermore, due to the victim's independent observations at the time of the robbery, she was able to identify the defendant as the offender, and, thus, her identification was independent of the illegality:
Nor did the illegal arrest infect the victim's ability to give accurate identification testimony. Based upon her observations at the time of the robbery, the victim constructed a mental image of her assailant. At trial, she retrieved this mnemonic representation, compared it to the figure of the defendant, and positively identified him as the robber. No part of this process was affected by respondent's illegal arrest. In the language of the "time-worn metaphor" of the poisonous tree, the toxin in this case was injected only after the evidentiary bud had blossomed; the fruit served at trial was not poisoned.
The Court cautioned, however, that an identification made after an illegal arrest could impact the reliability of the in-court identification and render it inadmissible. Yet, the trial court expressly found the victim's in-court identification was a product of an "independent recollection of her initial encounter with the assailant, uninfluenced by the pretrial identifications, and this determination finds ample support in the record."
Finally, addressing the third element, the Court explained that an "illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction."
Most recently, the United States Supreme Court dealt with the evidentiary consequences of a Fourth Amendment violation in the context of a deportation hearing in INS v. Lopez-Mendoza , supra. After noting that a deportation hearing is a purely civil action whose purpose is not to punish but to determine eligibility to remain in the country, the high Court stated "the 'body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred," analogizing it to forfeiture proceedings directed against contraband. Id.
Finally, and related to our discussion, Professor Wayne LaFave offers the "pristine" example of the independent source exception - that is, an observation of an object (even made by police), prior to unconstitutional conduct, which he concludes is unquestionably admissible:
But, in what is perhaps the most pristine example of the "independent source" exception discussed herein, the discovery of an object by an illegal search does not bar testimony about that object based upon an earlier, lawful viewing of it. See , e.g. , United States v. Templeman ,(8th Cir. 1992) (where package opened pursuant to valid warrant and then was closed up and controlled delivery made to defendant, whose home then illegally entered and contents of package seized, testimony about those contents admissible, as "they had previously been discovered as a result of the valid search"); Cooper v. State , 965 F.2d 617 (Fla. App. 1983) (where police illegally seized meat stolen from grocery store, manager of store could testify about observing the taking of the meat and could testify about the value of the meat if he knew it from that observation, but could not testify as to value if it determined by examining the meat after the police recovered it); State v. Black , 432 So.2d 161 , 175 W.Va. 770 (1985) (though cash boxes recovered from defendant's house in illegal search, officer could testify as to seeing those boxes in defendant's car earlier during lawful stop). 338 S.E.2d 370
6 LaFave, Search & Seizure , § 11.4 at 322 n.1.
From this decisional law, scholarship, and underlying policy expressions emerge certain guiding principles regarding application of the fruit of the poisonous tree doctrine relevant to the identification testimony issues before us. First, Wong Sun provides the general inquiry underlying the doctrine: "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun ,
Further, there is no per se ban on the admission of all evidence resulting from unlawful law enforcement conduct. Silverthorne Lumber ; Wong Sun ; Crews . Rather, an inquiry must be made into the source of the evidence as well as any potential tainting of the evidence due to unconstitutional actions by police. Any evidence that comes solely as a result of illegal conduct is tainted fruit, and is not admissible. Gilbert . Conversely, the mere fact that certain evidence was obtained illegally does not necessarily bar evidence based upon an earlier, lawful viewing. Crews ; 6 LaFave, Search & Seizure , § 11.4 at 322 n.1. Evidence whose origin is wholly independent of unconstitutional action by law enforcement is admissible. Wade . However, even evidence that originates prior to illegal conduct may be impacted by these unconstitutional actions, as those actions can affect the reliability of the evidence at trial or render it inadmissible. Crews . All these principles apply equally to *929identification testimony. Wade ; Gilbert ; Crews .
Based upon all of the above, we hold that an identification made wholly as a result of a warrantless search renders such identification tainted and inadmissible. However, eyewitness identification of a defendant occurring prior to illegal conduct by law enforcement may be admissible, if based on observations that are independent of the taint of the subsequent unconstitutional search.
Turning to application of these principles to the matter sub judice , if Officer Sanchez's in-court identification was not independent of the illegal search of Appellant's cellphone, but, rather, was tainted by the unconstitutional conduct and the subsequent observation of Appellant's picture as a result of the NCIC search, then all evidence that came as a byproduct of the illegal cell phone search, including the NCIC identification, was properly suppressed.
However, Officer Sanchez observed Appellant both as a government officer and as a victim of a crime prior to the illegal search.
*930Gilbert ; Crews ; Garvin .
After the Commonwealth placed into evidence at the suppression hearing the officer's observations of Appellant during their initial encounter, under the Nardone burden shifting construct, supra , it was incumbent upon Appellant to challenge the illegal search (which he did), but also the factual nexus, or relationship, between that primary illegality and the evidence in issue, i.e. , that the specific identification evidence against him was, indeed, an identifiable fruit of the poisonous tree. That is, Appellant needed to establish that the initial encounter observations were tainted (or challenge the veracity of the officer's observations as an independent means of identification that he was not, in fact, able to identify Appellant as the perpetrator at that time). In response, the Commonwealth would have then had the opportunity to convince the court that the identification testimony was independent of any taint of the illegal search. Nardone ,
Yet, here, as we view counsel's ambiguous objection at the suppression hearing, Appellant advocated only that Officer Sanchez's testimony was retroactively tainted by the "flow" - the post-encounter unconstitutional search. N.T., 2/19/16, at 39 ("It's not the fruit itself that is the issue. It is not the in court identification. Again, I am not arguing that the officer didn't have enough time to look at my client, and was it dark outside, you know, did you see his eyes, that kind of stuff. That is not what I am arguing. I am arguing that the flow that gets us to this point, that is what's tainted. That is the poisonous tree that makes the in court [sic]"). At the suppression hearing, Appellant did not contest whether Officer Sanchez has a sufficient opportunity to view Appellant, whether the lighting was sufficient, or the officer's ability to examine Appellant's face.
*931Related thereto, and perhaps due to Appellant's failure to challenge Officer Sanchez's initial observations, the trial court engaged in no analysis of whether the officer's identification testimony was insufficiently founded on his initial encounter with Appellant. Rather, the court seemingly also labored under the misunderstanding that, because of the subsequent illegal search, the officer's prior observations had to have been ipso facto tainted. Trial Court Opinion, 7/18/16 at 16 ("Even if Officer Sanchez were to identify [Appellant] at trial based on his observations of [Appellant] made during the vehicle stop, no independent basis exists for his in-court identification because his testimony is inseparable from and dependent upon the warrantless search that he himself conducted of [Appellant's] cell phone."). However, any such retroactive application of the fruit of the poisonous tree doctrine has long been dispelled by the United States Supreme Court. See Maryland v. Macon ,
Furthermore, as a distinct analysis, the trial court suggested that the illegal cell phone search led to Appellant's presence at trial, offering that the "very opportunity for the officer to identify [Appellant] by his physical presence in the courtroom is occasioned upon the exploitation of the warrantless search to secure his attendance." Trial Court Opinion, 7/18/16, at 12. In its *932view, it was solely Officer Sanchez's unlawful search and out-of-court identification that made it possible for the officer to identify Appellant at trial. Before us, Appellant makes a similar argument, asking us to overrule Garvin to the extent it stands for the proposition that one cannot suppress the accused's person as fruit of the poisonous tree. We reject the trial court's analysis and Appellant's request. We interpret Garvin , which made no distinction between in-court and out-of-court identification, to stand for the unremarkable proposition that the defendant - that is, his or her compelled presence at trial - is not subject to suppression. Garvin ,
Jurisdiction relinquished.
Chief Justice Saylor and Justices Baer, Dougherty and Mundy join the opinion.
Justice Wecht files a dissenting opinion in which Justice Donohue joins.
Notes
75 Pa.C.S. § 4524(e)(1).
The Commonwealth concedes the cell phone was not voluntarily abandoned in light of its dislodging during the struggle between the Appellant and Officer Sanchez, and, thus, that the search of the phone without a warrant was illegal.
The NCIC is an electronic clearinghouse of criminal data that can be accessed by most criminal justice agencies nationwide, to assist in the apprehension of fugitives, locate missing persons, recover stolen property, and identify terrorists. See generally www.fbi.gov/services.cjis.ncic.
As discussed below, generally speaking, the exclusionary rule applies to evidence that was obtained from a search or seizure in violation of the Fourth Amendment. The fruit of the poisonous tree doctrine extends the exclusionary rule to render evidence inadmissible which was derived from the initially illegally obtained evidence.
On April 14, 2016, the Commonwealth filed a notice of appeal indicating that the suppression court's order terminated or substantially handicapped the prosecution of Appellant, justifying an interlocutory appeal per Pa.R.A.P. 311(d).
The reference to the suppression of the accused's "person," "body," or "face," at trial, stems from the United States Supreme Court's consideration of this concept in United States v. Crews ,
The Superior Court also distinguished the United States Supreme Court's decision in INS v. Lopez-Mendoza ,
The dissent takes issue with our "reframing" the issue in a fashion that "differs textually from that upon which we granted review." Dissenting Opinion at 936, 938-39. Respectfully, when our Court grants allocatur on an issue as framed by the appellant verbatim, as is the case here, we have not hesitated to rephrase the issue in our opinion. It cannot be seriously contended that our elucidation of the legal issue before us is inaccurate or that we have failed to address the matters contained in the issue as framed by Appellant.
As noted, the Commonwealth accepts that, in this appeal, a warrant or exigent circumstances were required for a lawful search of the cellphone, and, in this instance, the search was illegal. Commonwealth's Brief at 5.
The Superior Court perceived the Commonwealth's argument before that court to be that in-court identifications can never be suppressed. However, the Commonwealth agrees that an in-court identification may be suppressed, if the witness bases the identification on an impermissibly suggestive pretrial procedure, instead of an independent recollection of the offender. This position, as explained below, is consistent with the law as it has evolved with respect to the exclusion of eyewitness identification testimony. Thus, we reject any contention that in-court identifications can never be suppressed.
The protections announced in these decisions were made applicable to the states through the high Court's influential 1961 decision in Mapp v. Ohio , which declared that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court."
The Court listed several factors that courts should consider when evaluating whether an in-court identification is derived from sources independent of an uncounseled pretrial identification. These factors included: the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and defendant's actual description, any identification of another person prior to lineup, identification by picture of the defendant prior to lineup, the failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and lineup identification. Wade ,
Our holding today is consistent with federal jurisprudence in this area. See , e.g. , U.S. v. Concepcion ,
We recognize that Officer Sanchez, in this instance, is in the unusual position of being the initial witness to, and actual victim of, a crime, and also the government agent who, as an investigator, then illegally searched Appellant's cell phone without a warrant, and viewed Appellant's photograph through the NCIC system, leading to Appellant's arrest. Yet, we see no reason to treat law enforcement officers any differently than any other witness to a crime, and no case law offered by the parties suggests otherwise. Either the evidence has an independent source or the evidence is tainted, regardless of whether the victim/witness identification testimony comes from a police officer or a member of the general public.
Of course, even if admissible at trial, Officer Sanchez's identification testimony would be subject to cross examination and a credibility determination by the finder of fact.
Appellant urges that Officer Sanchez's identification testimony should be suppressed in its entirety, consistent with our recent decision in Fulton , supra . We reject this argument. Specifically, while Fulton , like this matter, involved the illegal search of a cell phone, all the evidence suppressed in that case was obtained as a result of the illegal search, including the existence of a witness whose testimony identified the defendant as using a name that was linked to the name of the murderer. Fulton ,
The dissent criticizes the majority for failing to properly construe Appellant's arguments. Dissenting Opinion at 937-39. However, we must resolve the legal issues before us in the context of the advocacy preserved and presented - both before the lower tribunals and our Court - and we find Appellant's arguments ambiguous at best. Appellant's arguments, both at the suppression hearing and before us, in our view, do not comprise the legal arguments now analyzed by the dissent, which include the inherent unreliability of eyewitness identification, a Crews -based argument regarding a lack of capacity to identify, and the sufficiency of Officer Sanchez's initial recollection of events. To read these arguments into Appellant's brief borders on the clairvoyant.
More importantly, and simply stated, it was Appellant's burden to establish the relationship between the illegal search and the objected-to evidence - that is, set forth some argument explaining how Officer Sanchez's in-court identification testimony was tainted. Nardone , supra ; Alderman v. United States ,
Finally, contrary to the dissent's charge, Dissenting Opinion at 937 n.5, our characterization of Appellant's arguments is consistent throughout - Appellant does not directly challenge Officer Sanchez's observations of him at the initial encounter, but, rather, asserts that the subsequent in-court identification based upon the initial encounter was, in unspecified fashion, tainted by the illegal search of Appellant's cell phone and the out-of-court identification. See Majority Opinion at 915-16, 919-20, 930, 932.
Although three members of the Court in Crews asserted that it was unnecessary to "decide whether respondent's person [i.e. , his face] should be considered evidence, and therefore a possible 'fruit' of police misconduct," because "the record plainly discloses that prior to his illegal arrest, the police both knew respondent's identity and had some basis to suspect his involvement in the very crimes with which he was charged," Crews ,
While the dissent contends that our discussion lacks "any rigorous analysis" regarding Appellant's invitation to revisit Garvin , Dissenting Opinion at 938-39, as the above discussion makes plain, we have addressed that decision and its meaning in the context in which it arose. Majority Opinion at 930-31. Furthermore, the dissent's differing interpretation of Garvin , and its conclusion that Garvin calls for the nullification of the exclusionary rule and is contrary to Wong Sun , Dissenting Opinion at 939-40, fails to account for the teachings of Crews and Carter , also discussed above, both of which post-date Wong Sun and stand for the same proposition offered in Garvin - that an illegal arrest does not bar a subsequent prosecution or deprive the government the opportunity to establish guilt through untainted evidence. Obviously, we do indeed decline Appellant's invitation to "explicitly disavow" the Garvin decision. Appellant's Brief at 12-13.
Dissenting Opinion
The Majority acknowledges the exclusionary rule, recognizing that "an identification made wholly as a result of a warrantless search ... [is] tainted and inadmissible." Maj. Op. at 929. The Majority further observes that "eyewitness identification of a defendant occurring prior to illegal conduct by law enforcement may be admissible, if based on observations that are independent of the taint of the subsequent unconstitutional search."
The fruit of the poisonous tree doctrine, announced by the United States Supreme Court in Wong Sun v. United States ,
In United States v. Wade ,
In United States v. Crews ,
Proceeding to address the admissibility of the witness' in-court identification, the Crews Court observed that, "[i]n the typical 'fruit of the poisonous tree' case ... the challenged evidence was acquired by the police after some initial Fourth Amendment violation[.]"
This is not to say that the intervening photographic and lineup identifications-both of which are conceded to be suppressible fruits of the Fourth Amendment violation-could not under some circumstances affect the reliability of the in-court identification and render it inadmissible as well. Indeed, given the vagaries of human memory and the inherent suggestibility of many identification procedures, just the opposite may be true.
These precedents cannot fairly be considered without acknowledgment of the weight that jurors tend to place upon eyewitness identification testimony, as well as the growing awareness of the potential for error inherent in such testimony. See Sandra Guerra Thompson, Judicial Blindness to Eyewitness Misidentification ,
Another scholar has noted that courts:
discuss eyewitness memory as if it were a fixed image, like a photo or a video. However, as social scientists have demonstrated over many hundreds of studies, eyewitness memory is highly malleable and is nothing like a photo or a video. An eyewitness's memory must be carefully preserved or it can become contaminated. Each effort to test an eyewitness's memory will reshape that memory.
Brandon L. Garrett, Eyewitness and Exclusion ,
*936Without deploying a great deal of speculation, it is very difficult to conclude that Officer Sanchez' recollection of Santiago from the scene of the crime was not impermissibly influenced by his later viewing of the photograph that he recovered (unconstitutionally) from his warrantless (and concededly illegal)
Central to the Majority's framing of today's issue is its focus upon Officer Sanchez' opportunity to observe Santiago at the time of the crime. The Majority characterizes our inquiry as "whether the fruit of the poisonous tree doctrine warrants suppression of the in-court identification testimony by a police officer who observed a defendant prior to an illegal search of that defendant's cell phone." Maj. Op. at ----. The construction of this question, which differs textually from that upon which we granted review,
First and foremost, it is imperative to reiterate that in-court identification testimony indisputably is subject to a taint analysis under the fruit of the poisonous tree doctrine. See Wade ,
*937Maj. Op. at 930. The Majority goes on to characterize Santiago's argument as advocating that "Officer Sanchez' testimony was retroactively tainted by the 'flow'-the post-encounter unconstitutional search."
The Majority's position on this point fails to account for Santiago's argument at the suppression hearing and also impermissibly shifts the burden away from the Commonwealth and onto the defendant. Once a motion to suppress is filed, it is the Commonwealth's burden to prove that the challenged evidence was not obtained in violation of the defendant's rights. See Commonwealth v. Wallace ,
Santiago's argument that Officer Sanchez' ability to identify Santiago in court was tainted by the "flow" from the unconstitutional search of his Santiago's cell phone is not, as the Majority maintains, a "retroactive application of the fruit of the poisonous tree doctrine." See Maj. Op. at 931. Rather, Santiago's claim is entirely consistent with the Supreme Court's acknowledgment in Crews that an illegality occurring subsequent to a witness' observations of a suspect at the time of the crime may taint the witness' ability to identify the defendant, and thus may warrant suppression of an in-court identification based upon those observations. See Crews ,
This leads to my second concern with the Majority's broad framing of the issue in terms of a witness' observations: an opportunity to observe does not equate, ipso facto , to an independent basis. As established by Crews , an independent basis exists when a witness' "capacity to identify [the suspect] neither resulted from nor was biased by the unlawful police conduct." See Crews ,
To allow an in-court identification to be admitted any time a witness observes a defendant, without accounting for the effects of improper identification techniques, is to ignore the realities of human memory. See Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony , 41 U.C. Davis L.R. 1487, 1497-1500 (2008). Moreover, such an approach serves functionally to diminish, if not eliminate entirely, application of the exclusionary rule to in-court identifications. One cannot be an eyewitness, and thus be called to provide eyewitness identification testimony, without having observed the suspect at the time of the crime. I do not propose that a witness' observations at the time of the crime can never serve as an independent basis, as the Wade dissenters feared. For example, when a witness had a lengthy interaction with a suspect during the crime, or is familiar with the suspect from prior encounters, or provides a detailed description of the suspect, an independent basis may well exist. It is when these circumstances are absent, as they are here, that a witness' observations and memories are highly susceptible to distortion or other taint by virtue of a subsequent illegality.
There is no indication in the record that Officer Sanchez' opportunity to observe Santiago during the traffic stop provided a sufficient basis for identification that was independent of the officer's viewing of the illegally obtained photo. The encounter lasted only one to two minutes, and Officer Sanchez admitted that Santiago was not making eye contact. At no point prior to viewing the photo did Officer Sanchez provide a description of the driver. Officer Sanchez offered no testimony upon which we may conclude that he had the ability, based solely upon his initial observations, to provide such a description.
Such an outcome also undermines the deterrent purpose of the federal exclusionary rule. The Majority emphasizes, and I agree, that the primary purpose of the exclusionary rule for violations of the Fourth Amendment is to deter unlawful police behavior. See Maj. Op. at 923; see also Crews ,
Also absent from the Majority's reframing of the issue is any rigorous analysis of Santiago's request that we reconsider our prior decision in Garvin . Specifically, Santiago asks this Court to disavow Garvin 's grandiose pronouncement that, "No law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accusers. Thus, we conclude that the only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome." Garvin ,
Allow me to make a simple point, one that should not need to be repeated at this late date: To declare that preventing the evils of crime provides a justification for police officers to violate an individual's constitutional rights is to dismiss the protections enshrined in the Fourth Amendment and defy the purpose of the exclusionary rule. Landmark Fourth Amendment precedents of the Supreme Court of the United States repeatedly have rejected such results-oriented rationalization. See Gilbert ,
I share the concerns raised by Justice Manderino in Garvin :
the logical and dangerous result of the majority's opinion, that identification evidence following an illegal arrest does not fall within the exclusionary rule, is to *941grant law enforcement officers an unfettered discretion to illegally seize any person or any number of persons on mere suspicion, secure in the knowledge that if by chance a subsequent identification is obtained, the illegally seized individual will not have the right to suppress the tainted identification.
Garvin ,
There is no indication that Officer Sanchez "developed [a] capacity" to identify Santiago that was uninfluenced by the photo obtained as a direct result of the warrantless search of Santiago's cell phone. See Crews ,
Justice Donohue joins the dissenting opinion.
In a companion case argued and decided on the same day as Wade , the Court likewise held that "[t]he admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error." See Gilbert v. California ,
I think the rule fashioned by the Court is unsound. The 'tainted fruit' determination required by the Court involves more than considerable difficulty. I think it is practically impossible. How is a witness capable of probing the recesses of his mind to draw a sharp line between a courtroom identification due exclusively to an earlier lineup and a courtroom identification due to memory not based on the lineup? What kind of 'clear and convincing evidence' can the prosecution offer to prove upon what particular events memories resulting in an in-court identification rest?
Wade ,
As I discuss further below, and as scholars have acknowledged, these concerns have largely been mitigated by courts' routine allowance for admission of in-court identification testimony based upon the mere opportunity to observe the defendant during the crime. See infra at 938-40; Charles A. Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy's Due Process Protection ,
At trial, the court permitted all three victims to identify Crews as their assailant. A jury convicted Crews of armed robbery of the first victim and acquitted him of all other charges. On appeal, the United States Court of Appeals for the D.C. Circuit ordered the suppression of the first robbery victim's in-court identification. This was the only identification challenged on appeal to the Supreme Court.
See Maj. Op. at 915 n.2.
We granted allocatur on the following question:
Is not the Superior Court's published opinion applying the fruit of the poisonous tree doctrine to in-court identification testimony inconsistent with controlling Fourth Amendment United States Supreme Court precedent and Article I, § 8, and does not its reliance on overly broad language in Commonwealth v. Garvin ,, 448 Pa. 258 (1972), necessitate this Court's guidance and explicit rejection of Garvin and its progeny? 293 A.2d 33
Commonwealth v. Santiago ,
While the Majority asserts that I "read ... arguments into Appellant's brief" in a way that "borders on the clairvoyant," Maj. Op. at 931 n.17, it is the Majority that reads out of this case Santiago's claims concerning "the inherent unreliability of eyewitness identification" and "a Crews -based argument regarding a lack of capacity to identify." See
The Majority's characterization of Santiago's argument is also internally inconsistent. Compare Maj. Op. at 930 ("[Santiago]'s focus ... has been that Officer Sanchez' in-court identification, even if initially founded solely on his encounter with [Santiago], was tainted by his post-encounter observation of [Santiago]'s photograph in the NCIC database.") with id. at 932-33 ("[Santiago] did not challenge this original observation testimony as being infected by the taint of the unconstitutional search of [his] cell phone[.]").
It is a hornbook principle in the law of criminal procedure that a defendant carries no burden at the suppression hearing. See, e.g., 26A Standard Pennsylvania Practice 2d § 134.99 ("At a suppression hearing, the Commonwealth has the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant's rights."). This Court has consistently held as much time and time again. See, e.g., In re L.J. ,
Santiago challenged the admission of Officer Sanchez' in-court identification as fruit of the unconstitutional search of Santiago's cell phone. At this point, Santiago met his "burden," although I am hesitant to characterize it as such inasmuch as Santiago carries no burden. At the suppression hearing, it was the Commonwealth's burden to prove that Officer Sanchez' testimony rested on an independent basis, separate from and untainted by the intervening illegality.
It bears noting that this case comes before us following the trial court's order granting Santiago's motion to suppress. When reviewing such an order, we "consider only the evidence of the defense and so much of the evidence for the Commonwealth as remains uncontradicted when read in the context of the suppression hearing record as a whole," and when "the record supports the suppression court's factual findings, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error." Commonwealth v. Lukach , --- Pa. ----,
The Commonwealth's opportunity to test a witness' ability to identify a suspect is through identification procedures performed in accordance with constitutional protections. Where, as here, the Commonwealth violates the suspect's constitutional rights, and obtains an identification that is tainted by that illegality, the Commonwealth bears a heavy burden to prove that the witness' ability to identify the suspect can be disentangled from the taint caused by the constitutional violation.
Recognizing that Article I, Section 8 of the Pennsylvania Constitution more zealously protects individual privacy rights than the Fourth Amendment to the United States Constitution, this Court has held that our exclusionary rule serves a separate purpose as well: to guard against unwarranted intrusions upon an individual's right to privacy. See Commonwealth v. Edmunds ,
Perhaps the Garvin majority perceived Wong Sun to be insufficiently "law abiding." In any case, the United States Constitution is the "supreme Law of the Land." U.S. Const. art. VI, cl. 2. It is that Charter, and not Garvin 's windy declaration, that we must hold paramount as we fulfill our own role within a "law abiding society."
I do not disagree with Garvin 's conclusion that an illegal arrest is not a bar to a subsequent prosecution. However, the question of what evidence is admissible during that prosecution is a separate inquiry. That a suspect, despite an illegal arrest or search, may inevitably be called to "face his accusers," see Garvin ,