Commonwealth v. Santiago

209 A.3d 912

COMMONWEALTH of Pennsylvania, Appellee

v.Angel SANTIAGO, Appellant

No. 1 EAP 2018

Supreme Court of Pennsylvania.

Argued December 6, 2018

Decided June 18, 2019

OPINION

JUSTICE TODD

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.¹ When Officer Sanchez waved the car down, the driver, Appellant Angel Santiago, pulled over and lowered the driver's side window as the officer approached that side of the vehicle. Appellant seemed nervous and avoided eye contact with Officer Sanchez, who asked for Appellant's license, registration, and insurance information. Appellant replied that he had no license. The officer estimated that one to two minutes elapsed during the exchange during which he had the opportunity to observe Appellant's behavior at close range. When the officer directed Appellant to turn off the vehicle, Appellant did not comply with this request, and began to reach into the center console. Officer Sanchez immediately reached through the window and grabbed Appellant's arm to prevent him from retrieving anything from the console.

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.² Only two contacts were found in the phone, neither of which was immediately displayed upon opening the phone; rather, the officer had to affirmatively navigate through the phone and select the necessary functions to make the names and phone numbers appear on the screen. The first contact was "Angel Santiago," and the second one was "My Babe." Officer Sanchez called the contact "My Babe," but no one answered.

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.³ As a result of the search, the detective obtained a recent prison release photograph of an Angel Santiago in the Philadelphia area. When the detective showed Officer Sanchez the photograph, the officer immediately identified the pictured individual as the driver of the vehicle. Based on that identification and information the officer provided when interviewed about his encounter with Appellant, an arrest warrant was issued, and ultimately Appellant was arrested and charged with aggravated assault and other crimes.

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 phone – i.e. , the fruit of the poisonous tree.⁴

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 ... 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.⁵

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 , 160 A.3d 814 (Pa. Super. 2017). As neither party disputed the suppression court's underlying ruling that the warrantless search of Appellant's cell phone was unconstitutional, the Superior Court limited its review to the scope of the suppression remedy afforded to Appellant as a result of the unconstitutional search, and an examination of the Commonwealth's contention that, because eyewitness identification testimony is never suppressible, the trial court erred in suppressing Officer Sanchez's anticipated in-court identification of Appellant.

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...