Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellant,
v.
Nathaniel DANIELS.
Argued May 7, 1991.
Filed July 1, 1991.
Commonwealth appealed from order of the Court of Common Pleas, Philadelphia
County, Criminal Division, No. 8712-258-63, Bernstein, J., granting
defendant's motion to suppress handguns seized from his home. The Superior
Court, No. 1994 Philadelphia 1989, Rowley, President Judge, held that handguns
were seized while in plain view by police officers who were lawfully present
in home and should have been admitted.
Reversed and remanded.
West Headnotes
[1] Criminal Law k1134(3)
110k1134(3) Most Cited Cases
[1] Criminal Law k1158(2)
110k1158(2) Most Cited Cases
Trial court's conclusion that defendant "acquiesced" to police entry of his
home rather than consenting to search or seizure was legal conclusion drawn
from findings of fact, not factual finding by which Superior Court was bound.
[2] Searches and Seizures k47.1
349k47.1 Most Cited Cases
(Formerly 349k47)
[2] Searches and Seizures k48
349k48 Most Cited Cases
[2] Searches and Seizures k49
349k49 Most Cited Cases
In order for "plain view" doctrine to justify warrantless seizure, initial
intrusion must be lawful, items seized must have been inadvertently observed,
and there must be probable cause to link observed property with criminal
activity. U.S.C.A. Const.Amend. 4.
[3] Searches and Seizures k53.1
349k53.1 Most Cited Cases
(Formerly 349k53)
For purposes of suppression motion, police officers were lawfully present in
defendant's home where, after being arrested in front of his residence,
defendant asked permission to get his keys and lock his door before being
taken to police station and was told that he could do so only if he was
accompanied inside by officers.
[4] Searches and Seizures k48
349k48 Most Cited Cases
Plain view exception to warrant requirement cannot be used as pretext when
police officers know in advance the location of item and intend to seize it.
U.S.C.A. Const.Amend. 4.
[5] Searches and Seizures k48
349k48 Most Cited Cases
For purposes of plain view exception to warrant requirement, police officers'
observation of guns in rape suspect's home was inadvertent, even though
officers were aware that victim had been raped at gunpoint; officers did not
enter house knowing location of guns and intending to seize them. U.S.C.A.
Const.Amend. 4.
[6] Searches and Seizures k49
349k49 Most Cited Cases
For purposes of plain view exception to warrant requirement, police officers
had probable cause to believe that handguns observed in rape suspect's home
were evidence of criminal activity; victim informed police officers that
suspect had raped her in his home at gunpoint, and even if police officer did
not know that handgun was involved he could reasonably make that inference.
U.S.C.A. Const.Amend. 4.
**896 *114 Hugh H. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com.,
appellant.
Fortunato N. Perri, Jr., Philadelphia, for appellee.
Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.
ROWLEY, President Judge.
The Commonwealth of Pennsylvania, appealing from the order of the trial court
granting appellee's motion to suppress, raises the following issue: whether
the trial court erred in suppressing two handguns seized while in plain view
by police officers lawfully present in appellee's home. After reviewing the
record, we reverse the order of the trial court granting appellee's motion to
suppress the handguns.
The following factual history was set forth by the trial court in its
opinion:
On November 26, 1987, at 8:30 p.m. Michelle Wharton told police Officer
Marone that earlier that evening she had been raped at gunpoint by her
ex-boyfriend, [appellee] Nathaniel Daniels, at his residence at 1519 Opal
Street. Officer Marone and two other police officers took the complainant to
1519 Opal Street. The defendant answered the door and stepped outside. He
was immediately handcuffed and escorted to the partol [sic] car where he was
identified by the complaining witness. The defendant asked permission to
get his keys and lock his door before being taken to the police station. He
was told that he could do so only if accompanied inside by the officers.
Several Officers followed the defendant to a second floor bedroom where
Officer Kapusta seized a gun located on a dresser. Before escorting the
defendant out of the house[,] Officer Kapusta went into the dining room and
took a second gun from the table. [FN1]
FN1. Officer Kapusta testified that, as he was walking down the steps
from the second floor, he looked over the railing and could see into the
dining room where the gun was located. Suppression Hearing Transcript
7/10/89 at 44.
*115 Trial Court Opinion at 2-3 (footnote added) (citations to record
omitted). [FN2]
FN2. Although the trial court granted appellee's motion to suppress the
guns, the trial court did not credit appellee's version of the events
leading to the discovery of these guns. Contrary to the finding made
by the trial court that the police officers escorted appellee into his
home so he could get his keys and lock his house, appellee testified
that, after he was outside and handcuffed, the police officers asked him
if they could go inside and talk to him and that, once they were inside,
they "shot straight upstairs" and he heard drawers slamming and "a lot
of rumbling around on the dresser." Suppression Hearing Transcript
7/10/89 at 62-67. Appellee, however, does not contend that the guns were
located in the drawers which the police officers were allegedly
searching. It is undisputed that one of the guns was on top of a
speaker in appellee's bedroom and the other gun was on the dining room
table. See id. at 25- 26, 64, 67.
[1] The trial court determined that appellee merely "acquiesced to the
police entry in order to obtain his keys rather than leaving his house
unlocked [and] there was no consent for any search or for any seizure." [FN3]
Id. at 4. Therefore, the trial **897 court concluded that the police
officers had no right to search appellee's house and seize anything contained
in it without a search warrant. The Commonwealth, on the other hand, argues
that, pursuant to the plain view exception to the Fourth Amendment warrant
requirement, the guns could constitutionally be seized by the police officers
because they were in appellee's residence with his consent. After examining
the applicable caselaw, *116 we agree with the Commonwealth that the guns were
constitutionally seized.
FN3. The Commonwealth contends that after the suppression hearing the
trial court made formal findings of fact on the record in which it
characterizes the police entry as lawful and with appellee's permission.
Although the Commonwealth argues that the findings made by the trial
court in its opinion, to the extent they conflict with the earlier
findings, should be disregarded, the portion of the suppression hearing
transcript which contains the trial court's factual findings was not
included in the certified record. We will not consider information
contained only in a party's brief. Commonwealth v. Rini, 285 Pa.Super.
475, 427 A.2d 1385 (1981). Nonetheless, the trial court's conclusion
that appellee "acquiesced" rather than "consented" is not a factual
finding by which we are bound, but is a legal conclusion drawn from the
findings of fact. Commonwealth v. Davidson, 389 Pa.Super. 166, 566 A.2d
897 (1989), allocatur denied, 525 Pa. 624, 578 A.2d 412 (1990). We may
properly review the validity of inferences and legal conclusions drawn
from the suppression court's findings of fact. Id.
[2] In considering the plain view doctrine, the Pennsylvania courts have
determined that, in order for the doctrine to apply, the following
requirements must be satisfied: (1) the initial intrusion must be lawful;
(2) the item must have been inadvertently observed; and (3) there must be
probable cause to link the observed property with criminal activity.
Commonwealth v. Pine, 370 Pa.Super. 410, 536 A.2d 811 (1988), allocatur
denied, 519 Pa. 653, 546 A.2d 57 (1988); Commonwealth v. Kendrick, 340
Pa.Super. 563, 490 A.2d 923 (1985). The United States Supreme Court has
recently discussed these requirements in Horton v. California, 496 U.S. 128,
110 S.Ct. 2301, 110 L.Ed.2d 112 (1990):
It is, of course, an essential predicate to any valid warrantless seizure of
incriminating evidence that the officer did not violate the Fourth Amendment
in arriving at the place from which the evidence could be plainly viewed.
There are, moreover, two additional conditions that must be satisfied to
justify the warrantless seizure. First, not only must the item be in plain
view, its incriminating character must also be 'immediately apparent.' ...
Second, not only must the officer be lawfully located in a place from which
the object can be plainly seen, but he or she must also have a lawful right
of access to the object itself. [FN4]
FN4. The fact that the police officers were already in appellee's home
when they observed the guns distinguishes the present case from those
cases in which plain view alone does not justify a warrantless seizure.
Those cases involve situations where the observation of the evidence
takes place before any intrusion into a constitutionally protected area.
See Commonwealth v. Weik, 360 Pa.Super. 560, 521 A.2d 44 (1987). In
such cases, the police officers, after lawfully observing an item in
plain view, may not enter and make a warrantless seizure absent exigent
circumstances. Id. "This rule is contrary to the rule in the
after-intrusion line of cases. In those cases because the justifiable
intrusion has occurred, no further intrusion is occasioned by the
seizure of evidence which is in plain view and the seizure is permitted
without more...." Id. at 565, 521 A.2d at 46 (emphasis omitted) (
quoting Commonwealth v. Adams, 234 Pa.Super. 475, 482, 341 A.2d 206, 210
(1975) (citations omitted)). The present case is an after-intrusion
case in which seizure of the evidence is permitted as long as the
abovementioned requirements are met.
*117 Id. at ----, 110 S.Ct. at 2308, 110 L.Ed.2d at 123 (footnote added)
(citations omitted) (footnote omitted). In Horton, the court eliminated the
requirement that the observation of the item must be inadvertent.
[3] In the present case, the trial court based its decision to grant
appellee's motion to suppress on the determination that the initial intrusion
was not lawful. The trial court stated that appellant did not consent to the
police officer's entry into his home, but only submitted to lawful authority
after "[t]he police made it very clear that the defendant, under arrest
outside of his home, would be permitted to secure his premises only if
accompanied by the police officers." Trial Court Opinion at 4. Similarly,
appellee contends that, after he was placed under arrest and handcuffed, he
was "presented with a Hobson's choice: either 'consent' to the officer's
entry or, without his keys, leave his home unsecured. Clearly, [he] had no
choice whatsoever and his consent can, in no way imaginable, be deemed
voluntary." Appellee's Brief at 7. We do not agree.
After appellee was handcuffed, he asked police officers if he could get his
keys so that he could lock his house. He argues **898 that he merely stood
silent after this request and that the police officers unilaterally decided to
enter his home. Clearly, the police officers' entry into appellee's home was
in response to appellee's request that he be allowed to enter his home to get
his keys. Given the circumstances, he could not have reasonably believed
that he would be permitted to enter his home alone. Obviously, he could do
so only if accompanied by the police officers. He was under arrest after
being identified by the victim as the man who had raped her at gunpoint in his
home. It would have been completely irresponsible for the police officers to
permit appellee to enter his home alone.
Even if appellee initially had this belief, unreasonable as it would have
been, he could have decided to leave his house unlocked after he realized the
police officers were going to *118 accompany him into the house. Appellee
did not merely acquiesce to the police officers' entry; it was appellee's own
choice to go into his home which required the police officers to accompany
him. Cf. Davidson, supra (When the defendant requested that the police
officer return her purse to her, the police officer conducted a lawful
protective search of the purse first; the drugs found therein were in plain
view and therefore admissible.). The fact that appellee was faced with a
difficult choice, that is, leave his home unlocked or allow the police
officers to enter his home, does not make the police officers entry any less
lawful.
Appellee also argues that he believed that he was consenting to the police
officers accompanying him into the house so that he could get his keys, but
that he did not understand that his agreement to their entry was also an
agreement to a waiver of his right to be free from unwarranted searches.
This assertion reflects a misunderstanding of the plain view doctrine.
'In general, where practical, the police are required to obtain a search
warrant. Warrantless searches are per se unreasonable, subject only to a
few, limited exceptions.' When police officers who are 'justifiably at the
scene [see] contraband in plain view,' however, the observation 'is not a
search within the meaning of the Fourth Amendment.... [and] no warrant is
required.'
Weik, supra 360 Pa.Super. at 563, 521 A.2d at 45 (citations omitted). The
fact that appellee did not consent to a search is irrelevant because no search
was conducted.
[4][5] Because we have concluded that the police officers were lawfully in
appellee's house, we must determine whether the observation of the guns was
inadvertent. [FN5] The plain view exception cannot be used as a pretext when
police officers know in advance the location of an item and intend to seize
it. Kendrick, supra, 340 Pa.Super. at 569, 490 A.2d at 926 (citing Coolidge
v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In
Kendrick, *119 the court noted that although the police officers were aware of
the possibility that a drug sale might be in progress when they lawfully
entered the defendant's home, there was nothing to indicate that they had
anything more than a general expectation. Similarly, in the present case,
the police officers were aware that the victim had been raped at gunpoint.
However, they did not enter the house knowing the location of the guns and
intending to seize them. We therefore conclude that the observation of the
guns was inadvertent.
FN5. Although this requirement has been eliminated by the United States
Supreme Court in Horton, supra, we will still address it.
[6] Finally, we must consider whether the police officers had probable cause
to believe that the guns were evidence of criminal activity. The probable
cause standard
merely requires that the facts available to the officer would 'warrant a man
of reasonable caution in the belief,' that certain items may be contraband or
stolen property or useful as evidence of a crime; it does not demand any
showing that such a belief be correct or more likely true than false. A
'practical, non-**899 technical probability that incriminating evidence is
involved is all that is required.'
Kendrick, supra, 340 Pa.Super. at 571, 490 A.2d at 927 (emphasis added) (
quoting Texas v. Brown, 460 U.S. 730, 741-43, 103 S.Ct. 1535, 1543, 75 L.Ed.2d
502, 513-14 (1983). In Kendrick, a panel of this court found that there was
probable cause for the police officers to associate a film vial with criminal
activity. In Commonwealth v. Doria, 393 Pa.Super. 363, 574 A.2d 653 (1990) (
en banc ), during a search of the defendant's apartment, conducted pursuant to
a valid search warrant, a police officer found a leather jacket in a closet
with other male clothing. Although the leather jacket was not one of the
items listed on the search warrant, the police officer knew that the defendant
was a suspect in burglaries other than the one which was being investigated at
that time. The police officer therefore took the jacket from the closet and
then telephoned one of the victims of the other burglaries to confirm the
likelihood that the jacket was one of the items stolen. The court stated
that the police officers were not required to dismiss the knowledge of the
additional burglaries from their minds *120 while conducting a search for
evidence of other crimes. Therefore, the court concluded that seizing the
jacket was proper. See also Commonwealth v. Millard, 273 Pa.Super. 523, 417
A.2d 1171 (1979) (Police officers, while searching the defendant's apartment
for a key chain, ring, and frozen meats, properly seized a wrench and a
bolt.).
In the present case, the victim informed the police officers that appellee
had raped her in his home at gunpoint. While escorting appellee through his
home, the police officer observed the two guns. Although the record does not
reveal whether the police officer knew a handgun was involved, it would be a
reasonable inference for the police officer to make under the circumstances.
We conclude that the police officer had probable cause to believe the guns
observed in appellee's home were evidence of a crime.
Because the police officer was lawfully in appellee's home, and because he
inadvertently observed the guns and had probable cause to believe the guns
were linked with criminal activity, we conclude that the plain view exception
to the warrant requirement applies. Accordingly, the trial court erred in
granting appellee's motion to suppress.
The order of the trial court granting appellee's motion to suppress is
reversed. The case is remanded for further proceedings. Jurisdiction is
relinquished.
406 Pa.Super. 112, 593 A.2d 895
