Commonwealth v. Whitlock

69 A.3d 635

2013 PA Super 105

COMMONWEALTH Of Pennsylvania, Appellant

v.Jerrell WHITLOCK, Appellee.

Superior Court of Pennsylvania.

Argued Oct. 30, 2012.

Filed May 3, 2013.

Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

Brandon P. Ging, Public Defender, for appellee.

BEFORE: MUSMANNO, J., WECHT, J., and COLVILLE, J.^*

OPINION BY WECHT, J.:

The Commonwealth challenges the trial court's July 15, 2011 suppression order. That order precluded the introduction into evidence of five bricks of heroin retrieved from a five-gallon bucket located on the front porch of the residence of Jerrell Whitlock (“Appellee”). We affirm.

The trial court has provided the following account of the facts and allegations underlying its suppression ruling:

Pittsburgh Police officers, including Officer Fetty, Officer Rosato and Officer Butler were patrolling the Hazelwood area of the City of Pittsburgh [in plain clothes] in an unmarked police cruiser at approximately 5:00 p.m. on April 2, 2010. The officers observed three males, including [Appellee], whom the officers recognized from previous interactions, standing in front of a residence at 5122 Lydell Street. Officer Fetty testified that 5122 Lydell Street was located in the Hazelwood section of the City of Pittsburgh in an area which he referred to as “below the tracks.” Officer Fetty also identified this area as a “primary target area” and a “high crime or high drug area.” Officer Fetty believed that the three men he was observing recognized the officers' vehicle as a police car.

It was undisputed that 5122 Lydell Street was [Appellee's] residence. The officers were approximately 150 feet from the three males when they first saw them. According to Officer Fetty, who was riding as the front seat passenger as the officers' vehicle approached the males, two of the males “kind of drifted away from our vehicle, kind of walking back towards Elizabeth Street where we were coming from.” Officer Fetty observed [Appellee] walk onto the porch of the residence. The porch and the residence were fenced in. After [Appellee] walked onto the porch, Officer Fetty observed [Appellee] remove a large object from his pocket and drop it into a five gallon bucket sitting on the porch.

Officer Fetty suspected that the object was bundled bricks of heroin. The two other males and walked onto the porch. [ sic ] The officers exited their vehicles ¹ and summoned [Appellee] and the others to come down off the porch. All three men complied. The officers then detained the three men. According to Officer Fetty, at this point, the officers were conducting an investigatory detention of the men. Officer Fetty then walked onto the porch and looked into the bucket. Officer Fetty indicated that he saw what he believed to be five bricks of heroin taped together in white magazine paper. Officer Fetty testified that the package was opaque and he could not see through the paper to determine what was wrapped in the paper. [Appellee] was then placed under arrest. After the arrest, it was determined that the package contained heroin. Incident to arrest, the officers seized $1,371.00 and two cell phones which were found in [Appellee's] pant pockets.

Trial Court Opinion (“T.C.O.”), 1/18/2012, at 2–3 (footnote omitted).

On April 8, 2011, Appellee filed a pretrial motion to suppress the evidence obtained from the bucket located on the porch of Appellee's residence. On July 15, 2011, following a hearing at which the Commonwealth introduced only the testimony of Officer Fetty, the trial court granted Appellee's motion. This appeal followed.²

The Commonwealth raises the following question for our review:

Whether the suppression court erred in concluding that the police could not search the bucket and seize the object that they saw [A]ppellee discard, when the bucket was sitting on the front porch and in plain view from the street, and the court had found that the police were in a lawful vantage point when they viewed [Appellee] discard the object into the bucket?

Brief for the Commonwealth at 4.

Our standard of review of a trial court order granting a defendant's motion to suppress evidence is well-established:

When the Commonwealth appeals from a suppression order, we ... consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.

Commonwealth v. Boulware, 876 A.2d 440, 442 (Pa.Super.2005) (citations and internal quotation marks omitted). We defer to the trial court's findings of fact, because it is the fact-finder's sole prerogative to pass on the credibility of the witnesses and the weight to be given to their testimony. Commonwealth v. Baker, 946 A.2d 691, 693 (Pa.Super.2008).

The trial court noted correctly that, as a general rule, “a search warrant is required before police may conduct any search.” T.C.O. at 4 (citing Commonwealth v. White, 543 Pa. 45, 669 A.2d 896, 900 (1995)). Absent the application of one of a few clearly delineated exceptions, a warrantless search or seizure is presumptively unreasonable. Id. (citing Horton v. California, 496 U.S. 128, 134 n. 4, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). This is the law under both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Id. (citing Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621, 627 (2007)); see Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 656 (2010).

Among the enumerated exceptions to the warrant requirement is the “plain view doctrine,” upon which the Commonwealth bases its argument that the search and seizure here at issue were constitutional. In this connection, the trial court properly recited the three-part “Horton test” as follows:

[The plain view] doctrine permits the warrantless seizure of an object when: (1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and[ ] (3) the officer has a lawful right of access to the object. Commonwealth v. Brown, 23 A.3d 544 (Pa.Super.2011) (citing Horton v. California, 496 U.S. 128 [110 S.Ct. 2301, 110 L.Ed.2d 112] (1990)); Commonwealth v. McCullum, 602 A.2d 313, 320 (Pa.1992); Commonwealth v. Graham 721 A.2d 1075, 1079 (1998).

T.C.O. at 4. In determining whether the incriminating nature of an object is “immediately apparent” to a police officer, courts should evaluate the “totality of the circumstances.” Id. (citing Commonwealth v. Ballard, 806 A.2d 889, 892 (Pa.Super.2002)). Although courts have recognized that a police officer can never be certain that an object in plain view is incriminating, the officer's belief must be supported by probable cause. Id. at 4–5 (citing Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043, 1049 (1995)).

The trial court analyzed the facts and allegations before it as follows:

It is beyond dispute that the officers could not see what was contained inside the wrapped package. All they could determine is that [Appellee] possessed a package that was wrapped in newspaper. Although Officer Fetty testified that he suspected that the package contained heroin, the other circumstances of the officer's interaction with [Appellee] do not support this suspicion. As Officer Fetty testified, when the three males noticed the officers, they began to “drift away” or “walk” toward the police vehicle.³ None of the men ran from the scene or engaged in any conduct exhibiting their intent to flee the scene. Instead, the men walked toward the officers. [Appellee] walked onto his porch and the two men followed behind him. Knowing the officers were watching him, [Appellee] dropped an opaque package into a bucket on the porch.² There was absolutely no testimony during the suppression hearing suggesting the men were engaged in a narcotics transaction.³ They exhibited no furtive conduct. This Court believes that these circumstances demonstrate that it was not immediately apparent to the officers that the men were involved in any illegal activity and, therefore, it could not be “immediately apparent” that the opaque object observed by the officers was incriminating. It was simply a package or container wrapped in magazine paper.

2 The Commonwealth's characterization in their first appeal issue that the police saw [Appellee] “discard” the package is misplaced. [Appellee] dropped the package into a bucket located on the porch of his residence. There was no evidence that the bucket was used as a trash receptacle or that the bucket contained other “discarded” material.

3 There was no exchange of items taking place among the three men; there were no other items relating to drug activity observed on or near any of the three men.

If the officers believed that the totality of circumstances were such that they could convince an issuing authority that probable cause existed such that a seizure of the package/container wrapped in magazine paper was legally justifiable, they could have easily applied for a search warrant to conduct the search and seizure. All three individuals were detained. The bucket and its contents were under the complete control of the officers. Accordingly, the Court is convinced that the warrantless search of the bucket and seizure of the package was improper.

T.C.O. at 4–6 (citations modified; emphasis in original).

The Commonwealth and Appellee debate skillfully the constitutional question presented by what expectation of privacy is reasonable regarding a porch that is not entirely barricaded from street access.⁴ The discussion presents an interesting intellectual question, as to which there is only...