*4 FLAHERTY, C.J., ZAPPALA, Before CAPPY, CASTILLE, NEWMAN, NIGRO JJ.
OPINION ANNOUNCING OF JUDGMENT COURT NEWMAN, Justice.
Anthony Taylor (Taylor) (Mahone) and John appeal Mahone Order, from the Court’s which suppres- reversed during sion evidence seized the execution of a search warrant for a convenience store. consolidated *5 in the base- conducted the searches appeal questions whether subsequent seizures and the store ment of convenience United States Amendment to the the Fourth violate evidence portions Supe- disagree with Because we Constitution. decision, of the we affirm the order rior Court’s part part. and reverse Court HISTORY AND PROCEDURAL FACTS numerous com- Duquesne Department received Police The Conve- drug trafficking activity the G-Service plaints about Avenue, Pennsyl- in Duquesne, Crawford nience Store police up set complaints, response vania. 18, 1994 and On December outside the store. surveillance 4,1995, who patrons officer noted January the surveillance many of those length short time the store and the visited later, police weeks spent inside the store. Several patrons a into to make con- informant the store sent a confidential crack cocaine that buy. returned with The informant trolled Gooden, owner of the G- purchased from Eric he had Store. Service Convenience the surveillance gathered information from upon the
Based a police obtained buy, controlled and the informant’s Service Conve- authorizing a search the G search warrant team January a search effectuated Store. On nience store, a found and police Gooden the warrant. Inside part behind a counter. Whilе large of crack cocaine quantity Gooden, two officers went with of the search team remained building. into the down a set of stairs and basement basement, Taylor, sitting encountered In the the officers his plastic apron over wearing black a barber’s chair cutting Taylor’s hair. Mahone The observed torso. barber’s chair some The basement contained one other hair-cutting equipment. Richard presence, their Officer the officers announced
After (Officer Adams) moving Taylor’s noticed hands Adams Scott apron. Fearing could be plastic underneath apron and weapon, Adams removed the reaching Officer patted the of Taylor’s pocket. exterior Officer Adams felt hard object Taylor’s it removed from pocket. object bottle, was a plastic prescription which appeared to contain *6 crack cocaine. Taylor handcuffs,
After arresting placing and him in Officer Adams searched Mahone. any- Officer Adams did not find thing incriminating Then, on Mahone. Officer Adams hand- Mahone, (Constable cuffed while Constable McIntyre Gordon coats, McIntyre) two searched which on draped were a chan- Taylor ten feet from and McIntyre Mahone. Constable dis- pieces covered additional crack Taylor’s of coat and several baggies containing marijuana in Mahone’s coat. Taylor
The charged both and possession Mahone with aof controlled substance1 and possession of a controlled with substance intent to deliver.2 Both men to filed motions suppress them, the evidence seized from which the suppres- granted. that, sion court The court held while for the warrant the search of the valid, convenience store had been the Taylor searches of and scope Mahone had exceeded the of the warrant. in good Commonwealth certified faith that suppres- the
sion of the substantially evidence terminated or handicapped prosecution, its appealed and Court. See Superior the 934; 311(d). § Pa.C.S. Pa.R.A.P. In a fragmented memoran- opinion, dum the Court suppression reversed the of court, Writing Justice, evidence. for the Judge, now Saylor concluded that the search of barbershop the basement scope warrant, had however, been outside the of the justified search could be a legitimate protective as of sweep premises conjunction with the arrest of Judge Gooden. Olszewski filed concurring opinion disagreed which he the search of the justified basement could be as protective view, sweep. his the search of the basement had lawful open been because the is barbershop public, Taylor therefore and Mahone did not have a reasonable Substance, Act, Drug, 1. The Controlled Device and Cosmetic Act of amended, April 780-113(a)(16). § P.L. as 35 P.S. 780-113(a)(30). § 2. 35 P.S. Popovich Judge in the privacy basement.
expectation on affirmed based that he would have stated dissented granted Petitions reasoning suppression court. We to consider by and Mahone filed Appeal Allowance beyond were conducted in the basement the searches whether warrant, so, such searches and if whether under the Fourth Amendment. reasonable were
DISCUSSION sup order apрeals an When the Commonwealth evidence, of review: apply following standard pressing witnesses only of the defendant’s consider the evidence [W]e that, in the prosecution when read evidence record, uncontradicted. We of the entire remains context fact if findings of [suppression] court’s bound are *7 any record, we must examine by the but they supported are drawn from those facts. legal conclusions 1093, Pickron, 241, 634 A.2d v. 535 Pa. Commonwealth (1993). mind, will first examine this standard in With within basement were the searches conducted the whether of warrant. scope the search the
Scope the Warrant of of the base Both courts found that the search lower of scope the of the store fell outside the ment convenience Gooden Superior The Court concluded because warrant. Store, basement, not the were and the G-Service Convenience police investigation, the search targets the the Op., Ct. Super. of the warrant. basement exceeded the Thus, suppression with agreed 5. Court the the entry warrant and the prior to the execution of the court Duquesne Depart building by police, the the Police into the We probable cause to basement. lacked search ment agree. to the Fourth Amendment
The Warrant Clause
any war
prohibits the issuance of
States Constitution
United
cause,
or
supported by Oath
“probable
upon
rant unless based
affirmation,
and particularly
describing
place
to be
Const,
searched,
persons
things
or
to be seized.” U.S.
amend IV. The
scope lawful search pursuant
to a warrant
is
object
“defined
of the search and
places
in which
probable
there is
to
cause
believe that
it may be found.”
Garrison,
Maryland
480 U.S.
107 S.Ct.
(1987);
Commonwealth v. Kiessling,
L.Ed.2d 72
Pa.Super.
denied,
(1988),
allocatur
552 A.2d
522 Pa.
In the possessed a valid warrant search the G-Service Convenience Store. The warrant de- place scribed the to be searched as: 418 Crawford Duquesne[,] Ave[J PA 15110 —Corner of Crawford & 5th story Street —2 White Brick. A sign white (sic) is above the entrance labled “G-Service Convenience 2 phone & Store[”] numbers 466-1071 and painted 466-1061 (also picture red of a car on sign)[.] (R.R. 17a). Search Warrant probable affidavit of cause repeatedly emphasized that the investigation and surveillance focused on the G-Service Convenience Store and did not mention the basement barbershop. Application for Search (R.R. Wаrrant 17a-19a). Affidavit of Probable Cause barbershop While the was located in the same building as the store, convenience suppression court found the barbershop separate be a and distinct facility from the convenience record, store. The which contains evidence that the basement only housed barbershop equipment and activity, sufficiently supports finding suppression court. Because the *8 barbershop separate existed as a facility from the convenience police store and the did not probable have cause to believe that drug activity had occurred the barbershop, the base- barbershop ment fell scope outside the of the warrant issued to search the convenience store.
Protective Sweep While the search of the beyond basement extended warrant, may this search justified nonetheless be under the Fourth Amendment. asserts, The Commonwealth
149 police entered that the agreed, Superior Court and the sweep. legitimate protective of a part as basement record is from the that it unclear noted while Superior Court first separated the physically a door that was whether there basement, the record store from the convenience floor of the freely pass could entering store persons show did possibili- Given and the basement. first floor between that other reasonably believed police may have ty that could threaten premises on the who were individuals officers found safety, the Court officers’ after of the basement sweep protective conducted properly agree. arresting We Gooden. ato pursuant be search must conducted every
Not only bars unreasonable warrant, Amendment the Fourth Acton, v. 515 Vernonia Sch. Dist. and seizures. searches 47J (1995). 2386, 132 While 646, 652, 115 L.Ed.2d 564 S.Ct. U.S. pursuant unless generally not reasonable executed is search and this warrant, of the United States Supreme Court requirement. exceptions to the warrant recognized have Court 371-72, Bertine, 367, 107 S.Ct. See, v. 479 U.S. Colorado e.g., (1987) search); York v. 738, (inventory New 739 93 L.Ed.2d 2636, 702-03, 601 691, 96 L.Ed.2d 482 107 S.Ct. Burger, U.S. business); (administrative (1987) closely regulated search of a 1868, 27, 889 Ohio, 1, 20 L.Ed.2d 88 S.Ct. Terry v. 392 U.S. 354, Miller, frisk); v. Pa. (1968) 555 (pat-down Commonwealth 903, (1999), denied, 120 895, U.S. S.Ct. 900 cert. 528 724 A.2d situation); 242, (1999) (emergency Common L.Ed.2d 204 145 (1994), 721, Morris, 417, 644 A.2d 723-24 v. 537 Pa. wealth denied, L.Ed.2d 513 U.S. S.Ct. cert. search). (1994) exception well-recognized (protective One sweep. requirement protective is the the warrant search of quick is “a and limitеd protective sweep A protect and conducted to to an arrest premises, incident Buie, 494 Maryland or others.” safety officers Buie 108 L.Ed.2d S.Ct. U.S. 334, sweeps. Id. protective forth two levels sets are thus: 1093. The two levels defined S.Ct. *9 could, an incident to
[A]s the arrest the officers a as precautionary without probable matter and cause or reason- suspicion, able look in closets and spaces immediately other adjoining place the arrest from an which attack could be immediately that, Beyond however, launched. we hold that which, there must be together articulable facts taken with the rational facts, inferences from those would a warrant reasonably prudent in believing officer that the area be swept an harbors posing individual a danger to on the those arrest scene.
Id. Pursuant to the first a protective level of sweep, a without showing of suspicion, even reasonable police may officers cursory inspections make visual immediately spaces adja- scene, cent to the arrest which could an conceal assailant. permits the second a level search attackers away place arrest, further from the provided that officer who sweep conducted the can specific justify articulate facts to a reasonable safety fear for the of himself and others. recognized
We have
exigency
created
the existence
of hidden
parties during
third
an arrest. See Commonwealth
Norris,
Norris,
Pa.
446 A.2d
In
upheld,
arrest,
as a search incident to an
an inspection of a
bedroom that
discovery
resulted
оf a knife
visible
Buie,
plain view. Id. In light of
this “search” is
designat-
best
protective
ed
as a
sweep
anew
goal
because the
was
protect
officers Norris from
parties.
third
Norris,
police
conducted a
warrantless arrest of
suspect wanted for
rape
of a young girl
knifepoint.
at
After
police
detained
suspect
living
room of his
apartment, two
swept through
officers
his bedroom and seized
in plain
justification
knife
view. As
protective
for the
sweep,
we found that
police
“the
had every reason to
believe
firearm
occupants
was available to
apartment
that one of its usual occupants,
brother,
appellant’s
whom
appellant
implicated
victim,
had
in his threats of harm to the
was
living
unaccounted for in the
room.
A.2d at 249.
that,
arrest,
We held
inсident to the
authority
had
to enter other
ensuring
safety
their own
purpose of
for the
Id.
250.
might
danger.3
they
anticipate
*10
from where
areas
Norris,
in the present
in
officers
the officers
the
Like
sweep. To decide whether
protective
a valid
case conducted
must
sweep,
reviewing court
protective
the
justified
facts
a
the
position of
and from the
objectively
of the facts
consider all
Buie,
U.S. at
prudent police officer.
reasonably
the
case
present
sweep
1093.
the
the
110 S.Ct.
Because
vicinity of the
the immediate
beyond the area within
extended
which,
arrest,
together
taken
must
“articulable facts
be
there
facts,
a
warrant
from those
would
the rational inferences
with
area to be
believing
the
prudent officer
reasonably
the
danger to those on
posing
an individual
a
swept harbors
Id.
Clearly, specific facts, there are articulable which “when together facts,” taken with the rational inferences from those would give poliсe reasonable safety. concerns for their Here, after extensive probable surveillance and cause of illegal activity, police a building entered to search for narcotics. store, police Once inside the apprehended convenience large quantity Gooden and located a aof controlled substance but could confirm the whereabouts two individuals who just only had entered. As the adjoining accessible area floor, first provided logical hiding place basement Taylor and Mahone. The entered basement under parties reasonable belief that third were and could *11 them, pose a threat to exigent therefore legally circumstances justified protective of sweep the basement. protective only
Because the
of
sweep extends
to a
inspection
places
visual
of those
in which person might
hiding
longer
be
and lasts no
than
necessary
is
dispel
to
Buie,
danger,
335,
1093,
fear of
494
at
U.S.
110 S.Ct.
Com
Crouse,
588,
v.
monwealth
729
(Pa.Super.1999),
A.2d
592
allo
738,
(1999),
catur denied 560 Pa.
Search of The Superior Court held that once police officers basement, they justified entered were in searching Taylor for a potential weapon. Taylor began moving Because his hands apron, under the barber’s the court concluded that the reasonably suspected officer could have that Taylor might be dangerous. agree. armed and We
A police
may
officer
conduct a
frisk for
quick
weapons if
reasonably
he or she
that
person
fears
with
may
whom
or
dealing
he
she is
armed
dangerous.
be
Ohio,
1, 27,
Terry
1868,
v.
392
88
U.S.
S.Ct.
153
reasonably
armed;
is whether a
the issue
is
the individual
in the
would be warranted
man in the circumstances
prudent
danger.”
safety of others was
safety
his
or the
belief
of
existence
154 above,
As noted
of a
Terry
purpose
frisk
under
evidence,
is not to
to
discover
but
allow
pursue
the officer to
investigation
his
See
safety.
without fear for his or her
Williams,
Adams v.
1921,
407 U.S.
32
S.Ct.
E.M.,
(1972);
Commonwealth v.
16,
L.Ed.2d 612
558 Pa.
654,
(1999).
A.2d
In keeping
with
purpose,
that
Terry
of a
frisk
is limited to that
is necessary
which
for the
Terry,
discovery weapons.
26,
1868;
U.S.
88 S.Ct.
Stevenson,
Commonwealth v.
560 Pa.
744 A.2d
(2000). Therefore, in order to reach into a suspect’s pocket
frisk,
during a
the officer would
to
something
have
feel
that
appears
reasonably
weapon.4
to be a
with
a
We dealt
the search of
pocket
defendant’s
and the
bottle Commonwealth v. Graham. See 554 Pa.
seizure of a
Graham,
(1998).
Officer
had been
in initiating
reasonable
a frisk of the
Graham,
weapons.
defendant for
Unlike the frisk. proper Terry not exceed the case did Graham, was Dawley that the defendant ascertained Officer to In addi- and and continued search. dangerous armed not object the defen- tion, recognized hard in Dawley Officer bottle, flashlight candy but shined his pocket back as a dant’s Here, Adams pocket anyway. into the defendant’s Officer object pocket. Appellant Taylor’s his on the placed hand (R.R. 81a-82a). at 62-63 Hearing), (Suppression N.T. 12/18/96 about that was object Adams testified hard Officer at 71 Hearing), (Suppression inches N.T. long. four 12/18/96 90a). (R.R. object Adams concluded that While Officer knife, that the he that hе still gun was not or testified feared weapon. type some N.T. object could have been 12/18/96 95a). (R.R. 92a, Hearing), at (Suppression reasonably that concluded find that Officer Adams We had officer may been armed even after the Taylor have in the pocket. Adams had been involved touched the Officer store. investigation drug trafficking the convenience team out search of the search carried Moments before store, Taylor enter store had observed Officer Adams Immediately after en- found in the Taylor then basement. being countering police, Taylor pocket, despite for his reached Taylor fum- observing to times. After told not move several touched apron, barber’s Officer Adams ble under black hard, cylinder-type Taylor’s pocket. Officer Adams felt reasоnably, and only an officer need be object. Because to an in order absolutely, certain that individual is armed was that Adams investigate weapons, conclude Officer could armed suspecting be reasonable Therefore, into dangerous. justifiably Officer Adams reached safety protect safety Taylor’s pocket in order his and the in the others basement. object Taylor’s that the
After Officer Adams discovered apparently contained prescription was a bottle pocket cocaine, Taylor under arrest. Pursuant placed crack he *14 arrest, coats, Taylor’s McIntyre Constable searched two which Taylor. validity were from We now the of ten feet address this search. Coats
Search of Taylor legality Both Mahone the challenge of in Taylоr the search of the coats found the basement. that of the scope Mahone assert the search coats exceeded the of a search incident to upheld arrest.5 The Court the search coats it of the because concluded that the coats could ' or weapons. have contained either contraband While the contraband, we find that coats did contain the circumstances present the case did not a coats. necessitate search We reverse. Supreme
The Court the United States this that of a scope Court have held search incident to arrest only to person, extends not the arrestee’s but also into the arrestee’s “immediate control.” Chimel v. area within California, 395 752, 763, 2034, 89 L.Ed.2d U.S. S.Ct. 23 685 (1969); Commonwealth v. 164, 128, Shiflet, 543 Pa. 670 A.2d (1995). 130 While within the breadth the areа that falls subject arrestee’s “immediate control” has been the much debate,6 “strictly warrantless search must be circumscribed validity 5. of a upon The search incident rests warrantless to arrest 31, 36, legality DeFillippo, Michigan of the arrest. v. 443 U.S. 99 S.Ct. 2627, Williams, (1979); 61 343 L.Ed.2d Commonwealth v. 390 Pa.Su- 493, 1281, (1990). per. A.2d 568 1283 does not contest the validity drug possession of his arrest for after Officer found Adams what reasonably Taylor’s pocket. he fore, believed cocaine in to be crack There- only McIntyre we address whether Constable exceeded examining by of a incident to search arrest the contents of the two coats. Belton, 454, 462, 2860, 6. See New v. 453 101 69 York U.S. S.Ct. L.Ed.2d (1981)(holding passenger compartment 768 search of of an any following automobile and containers contained therein a lawful valid, car); despite arrest Chimel, the fact of the is arrestee is outside 752, (holding forty-five 2034 395 U.S. 89 S.Ct. that a minute search of an arrestee's entire home is invalid because it extended beyond might weapon the area which arrestee have obtained or Abdul-Saboor, 664, evidence); destructible U.S. v. 85 F.3d 670 (D.C.Cir.l996)(holding search of containers bedroom incident to valid, though even arrest is arrestee was handcuffed and seated outside
157
v.
Mincey
initiation.”
justify
which
its
exigencies
2408,
290
Arizona, 437
57 L.Ed.2d
U.S.
S.Ct.
661,
Wright,
v.
Pa.
742 A.2d
Commonwealth
(1978);
25, 2000).
(February
denied
(1999),
reconsideration
to
incident
arrest
for the search
historical
rationales
two
(1)
are
the need
requirement
warrant
exception
(2)
custody and
him into
suspect in order to take
disarm the
trial. Knowles
for later use at
preserve
need to
evidence
Iowa,
142 L.Ed.2d
v.
525 U.S.
S.Ct.
case,
the search
In the
believe
“immedi-
beyond
Taylor’s
the аrea within
two coats extended
invalid.
control” and was therefore
ate
States
United
Fifth
decision
find the
Circuit’s
We
*15
(5th Cir.1994).
The Fifth Circuit Court of had search of his briefcase exceeded the dant Johnson, at 71-72. incident to arrest. F.3d search the defendant sat surrounded several officers Because eight briefcase while away at least feet from his Officer bedroom, gun attempted previously to retrieve because arrestee had (5th Johnson, bedroom); Cir.1994)(holding U.S. v. 16 F.3d from was feet of briefcase invalid because briefcase six warrantless search is reach). from arrestee and out arrestee's it, Sterrett searched the court held that the had briefcase not been within the defendant’s immediate control. Id. at 72. The court noted that Officer Sterrett had no reason believe possessed weapon Johnson or was about to destroy reach, evidence within his therefore the search could not be justified as a Finally, search incident to arrest. Id. court that papers top held on found of the defendant’s desk had within been the defendant’s reach. Id. The court of appeals declined to suppress papers papers because the had been seized as evidence within the defendant’s immediate control during a search incident to arrest. Id. Johnson,
Like the briefcase the two coats in the present case were Taylor’s not within immediate control. While recognize that the search in present oc case curred in the basement of a convenience an store Johnson, building office inas we believe that is a this distinc tion without a Johnson, difference. Similar to case had prior secured the to searching scene coats. After patted-down Officer Adams had Taylor’s clothing for weapons and had Taylor, placed arrested Taylor he (Suppression handcuffs. N.T. at Hearing), 62-65 12/18/96 (R.R. 84a). Then, Officer Adams directed to sit 81a— in the barber’s chair. N.T. (Suppression Hearing), 12/18/96 (R.R. 86a). Taylor complied and sat in the chair with his wrists handcuffs. N.T. (Suppression Hearing), at 12/18/96 (R.R. 86a). Officer Adams also Terny frisked and hand *16 Mahone, cuffed who stood next to the chair. N.T. 12/18/96 (R.R. 86a). (Suppression Then, Hearing), at 67 Officer Adams stood with the two handcuffed men directed Constable and McIntyre to search the coats. N.T. (Suppression 12/18/96 (R.R. 98a-99a). at Hearing), 79-80 Like the briefcase in Johnson, the two coats were located ten Taylor feet from and Mahone, beyond well either man’s (Sup reach. N.T. 12/18/96 (R.R. 99a). pression Hearing), at 80 Neither nor Mahone any made movements toward the coats. There is no indication the record that police any the had reason to believe immediately that the men would attempt to secure a weapon destroy or contraband contained in the coats. While coats who owned the if Adams knew it not clear Officer is search, that McIntyre testified the Officer he directed before prior to search- belonged the to whom coats not know he did (R.R. Hearing), (Suppression N.T. ing. 12/18/96 search, 99a). conducted 97a, that a 87a, possibility The mere arrest, hidden may uncover some with an simultaneously find permit such a search. We is sufficient not evidence control, beyond Taylor’s immediate the two coats were that to his arrest. searched incident could not be and therefore dangers and to the uncertainties sympathetic is Our Court A making custodial arrests. confront while police that officers search, however, exigencies that is limited the warrantless that the officers initiation and we do believe its necessitate or to safety their the coats order to ensure search needed Thus, the we the of evidence. reverse prevent destruction from the evidence obtained Court find Superior suppressed. have coats should been search
CONCLUSION officers entered basement conclude We protective conduct- barbershop during sweep, Officer Adams Taylor, legally frisk оf and Officer Adams Terry a valid ed Therefore, pill Taylor. from we affirm confiscated the bottle Superior suppression reversing of the Court the Order However, we conclude that pill bottle and its contents. scope of a search incident search of the coats exceeded the Accordingly, Court’s Or- to arrest. reverse found in the coats reversing suppression of evidence der proceedings. and remand for further dissenting concurring opinion Justice NIGRO files join. ZAPPALA which Chief FLAHERTY and Justice Justice participate. did not Justice SAYLOR NIGRO, Justice, Concurring Dissenting. announcing judgment agree
I opinion with (“opinion that the search the basement judgment”) court scope of the warrant the G Service Conve- exceeded the *17 160 however, opinion judgment,
nience Store. Unlike the of I do not justified believe the search of the was a basement as legitimate protective therefore, I sweep respect- must also fully dissent. government heavy a proving bears burden of that a v.
warrantless
was
United States
search
constitutional.
Jef
fers,
51,
93,
48,
72
United
(1951);
342 U.S.