J-A18004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT BENJAMIN WILEY, III                 :
                                               :
                       Appellant               :   No. 1377 WDA 2018

        Appeal from the Judgment of Sentence Entered August 24, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0002729-2017


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                                  FILED APRIL 3, 2020

       Robert Benjamin Wiley, III, appeals from the imposition of thirty to sixty

months of incarceration followed by five years of probation, after a judge

convicted him of possession with intent to deliver (“PWID”)–cocaine. After

careful review, we vacate the judgment of sentence, reverse the trial court’s

suppression order, and remand for a new trial.1

       For several months, Detective Jason Triana and other members of the

Erie Police Department conducted surveillance of Appellant and his residence,

located at 245 West 16th Street, after a confidential informant (“CI”) told police

that Appellant was supplying him with crack cocaine from that residence. See


____________________________________________


1 Despite requesting and receiving an extension of time, the Commonwealth
did not file an advocate’s brief.       Therefore, we have gleaned the
Commonwealth’s position from the record below.
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N.T. Omnibus Pre-Trial Hearing, 4/11/18, at 21.         At Detective Triana’s

direction and while under his surveillance, the CI made multiple controlled

purchases of crack cocaine from Appellant at his residence while using marked

U.S. currency. Id. at 23. As a result of these controlled buys, on July 25,

2017, Detective Triana obtained a search warrant for Appellant’s residence.

Id. at 24-25.

      Detective Triana was aware that Appellant had a meeting with his

probation officer on July 26, 2017, at 10:00 a.m., so he waited until Appellant

left for the meeting before executing the search warrant.       Id. at 25-26.

Officers observed Appellant exiting his residence with a light-colored opaque

bag in hand. Id. at 2. Appellant entered the passenger side of a Buick Regal,

which was driven by his sister. Id. at 43. Officers discreetly followed and

watched as the Buick came to a stop at West 17th Street and Sassafras Street.

Id. Appellant exited the vehicle and proceeded, on foot, between two houses

on West 17th Street before approaching a silver Ford Fusion, which was parked

in a private driveway. Id. Detective Michael Chodubski watched as Appellant

opened the trunk of the vehicle, which he noticed had three flat tires. Id. at

28. Appellant then closed the trunk and returned to the Buick. No one saw

Appellant place the bag in the trunk. Id. at 52. However, when Appellant

returned to the Buick he was no longer carrying it. After a sweep of the area,

officers determined that Appellant must have placed the bag in the trunk of




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the Ford, and they had one officer remain with the vehicle while the other

officers continued to follow Appellant. Id. at 44.

        The Buick next stopped at the Erie County Courthouse where Appellant’s

probation officer was located, and police took Appellant into custody. When

Appellant was issued his Miranda2 warnings, he volunteered that police would

not find any drugs in his house. Id. at 53. Upon overhearing police discussing

the Ford, he interjected that the vehicle was his. Id. at 55. Thereafter, he

refused to answer any further questions about the vehicle or the location of

the drugs. Instead, he repeatedly stated that “he just wanted to go to the

county, take me to the county.”            Id. at 53.   Ultimately, the Erie police

determined that the Ford was registered to Appellant’s uncle, Desmond

Martin, not to Appellant.         Id. at 55.     Further, the search of the house

uncovered      five   Methylenedioxymethamphetamine          (“MDMA”)    pills   and

$6,480.00, including marked currency that had been given to Appellant by the

CI. Id. at 31. No crack cocaine or packaging materials were uncovered at

the residence. Id. at 32.

        Meanwhile, because the Ford had three flat tires, the Erie police towed

it to a parking garage. See Commonwealth Exhibit C, Affidavit of Probable

Cause, 7/26/17, at 6. At the suppression hearing, Detective Triana testified

that the vehicle was towed because the area where the car was located was



____________________________________________


2   Miranda v. Arizona, 384 U.S. 436 (1966).

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highly populated due to a popular market across the street. See N.T. Omnibus

Pre-Trial Hearing, 4/11/18, at 34.             Pennsylvania State Trooper J. Casey

arrived with his certified dog to perform a canine sniff. The canine alerted at

the vehicle’s trunk and both driver and passenger sides of the Ford. Id. at

39. That same day, Detective Triana secured a search warrant for the vehicle

based on the canine alerts. Id. When searching the trunk, Detective Triana

recovered the light-colored bag that Appellant had been seen carrying earlier

that day. Id. at 42. Inside the bag, Detective Triana found crack cocaine,

marijuana, a scale, and baggies. Id.

       The Commonwealth charged Appellant with PWID-cocaine, PWID-

marijuana, PWID-MDMA, possession of cocaine, possession of marijuana,

possession of MDMA, and possession of drug paraphernalia. Appellant filed

an omnibus pretrial motion seeking to suppress the evidence seized from the

Ford. Appellant also filed a petition for a writ of habeas corpus requesting

that the court dismiss the charges of PWID-marijuana and PWID–MDMA pills.

       On April 11, 2018, a hearing was held on Appellant’s omnibus pretrial

motion. Detective Triana testified that they towed the car, in part, because

that procedure had been sanctioned when undertaken by the Erie Police

Department in Commonwealth v. Williams, 2 A.3d 611 (Pa.Super. 2010).3

____________________________________________


3In Commonwealth v. Williams, 2 A.3d 611 (Pa.Super. 2010), Erie police
drove an automobile, which they had probable cause to search, from a private
driveway to a public garage in order to perform a canine sniff. The dog



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Appellant offered testimony that he was the sole owner and operator of the

vehicle, even though he was not the registered owner. See N.T. Omnibus

Pre-Trial Hearing, 4/11/18, at 62-63. He also asserted that the vehicle was

parked in his grandmother’s private residential driveway with her express

permission.      Id.     Following the hearing, both sides submitted briefs.

Ultimately, after receiving testimony and reviewing supplemental briefs, the

trial court denied suppression, holding that the canine sniff provided an

independent source that established probable cause for the search warrant.

       On July 3, 2018, Appellant proceeded to a non-jury trial.          At the

beginning of the trial, the Commonwealth withdrew all of the charges with the

exception of PWID-cocaine.          Counsel stipulated to a lab report that 46.57

grams of cocaine were recovered from the vehicle and that this amount was

consistent with a person who possessed cocaine with the intent to deliver it to

others, not merely for personal use. At the conclusion of the trial, the court

found Appellant guilty of PWID-cocaine.

       Appellant was originally sentenced to serve thirty-three months to seven

years of incarceration followed by five years of probation. After Appellant filed

a post-sentence motion requesting reconsideration of his sentence, a second

hearing was held. On August 23, 2018, the trial court issued an amended


____________________________________________


alerted, a search warrant was obtained, and drugs were recovered from the
vehicle in the search that resulted. We affirmed the trial court’s denial of
suppression on the basis of the independent source doctrine. We discuss this
case in detail below.

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sentencing order, reducing Appellant’s sentence to thirty to sixty months of

incarceration followed by five years of probation.      Appellant filed a timely

notice of appeal and complied with a court ordered directive to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. In response,

the trial court issued its Pa.R.A.P. 1925(a) opinion.

      Appellant raises the following issues for our review:

      I.     Whether or not the trial court erred in denying [Appellant’s]
             omnibus pre-trial motion/motion to suppress any and all
             evidence seized from the Appellant’s 2012 silver Ford Fusion
             SE bearing Pennsylvania plate JTV442 following the illegal
             towing of the said vehicle from private property on July 26,
             2017?

      II.    Whether or not the city of Erie police had reasonable
             suspicion based on articulable facts that illegal narcotics
             and/or other contraband would be found in Appellant’s silver
             Ford Fusion SE on July 26, 2017 thus, justifying the “dog-
             sniff” of Appellant’s vehicle?

      III.   Whether or not probable cause was established within the
             four corners of the search warrant if the information gleaned
             from the illegal “dog-sniff” of the Appellant’s vehicle is
             excised from the affidavit of probable cause in support of
             the search warrant?

Appellant’s brief at 5.

      All three of Appellant’s claims attack the trial court’s denial of his

omnibus pre-trial motion to suppress.

      An appellate court’s standard of review in addressing a challenge
      to the denial of a suppression motion is limited to determining
      whether the suppression court’s factual findings are supported by
      the record and whether the legal conclusions drawn from those
      facts are correct. Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as

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     remains uncontradicted when read in the context of the record as
     a whole. Where the suppression court’s factual findings are
     supported by the record, the appellate court is bound by those
     findings and may reverse only if the court’s legal conclusions are
     erroneous. Where . . . the appeal of the determination of the
     suppression court turns on allegations of legal error, the
     suppression court’s legal conclusions are not binding on an
     appellate court, whose duty it is to determine if the suppression
     court properly applied the law to the facts. Thus, the conclusions
     of law of the courts below are subject to plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (internal

brackets and citation omitted).

     Before we may proceed to a determination of Appellant’s substantive

claims we must first discern whether Appellant has established standing to

challenge the search of the automobile and a privacy interest in the contents

of it. Commonwealth v. Burton, 973 A.2d 428, 434-35 (Pa.Super. 2009).

Our Supreme Court has emphasized that these are distinct analyses:

     While curiously similar, standing and privacy interest are different
     concepts serving different functions. Standing is a legal interest
     that empowers a defendant to assert a constitutional violation and
     thus seek to exclude or suppress the government’s evidence
     pursuant to the exclusionary rules under the Fourth Amendment
     of the United States Constitution or Article 1, Section 8 of the
     Pennsylvania Constitution. It ensure a defendant is asserting a
     constitutional right of his own. The expectation of privacy is an
     inquiry into the validity of the search or seizure itself; if the
     defendant has no protected privacy interest, neither the Fourth
     Amendment nor Article I, § 8 is implicated. In essence, while a
     defendant’s standing dictates when a claim under Article I, § 8
     may be brought, his privacy interest controls whether the claim
     will succeed – once a defendant has shown standing, he must, in
     short, have brought his claim, demonstrate its merits by a
     showing of his reasonable and legitimate expectation of privacy in
     the premises.




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Commonwealth v. Enimpah, 106 A.3d 695, 698-99 (Pa. 2014) (citations

and quotations omitted).

      Since Appellant was charged with a possessory offense, he automatically

had   standing   to   challenge   the    suppression   of   the   items   seized.

Commonwealth v. Viall, 890 A.2d 419, 421 (Pa.Super. 2005). However,

whether Appellant established a legitimate expectation of privacy in the

vehicle’s contents is a closer question. See, e.g., Commonwealth v. Perea,

791 A.2d 427, 429 (Pa.Super. 2002) (finding that an appellant had not

established a privacy interest in a vehicle where he merely possessed the keys

needed to unlock it, without any paperwork to show ownership or any other

legitimate connection to it).

      Article 1, § 8 of the Pennsylvania Constitution and the Fourth

Amendment of the United States Constitution protect individuals from

unreasonable searches and seizures, but only in areas where an individual

enjoys a reasonable expectation of privacy. See Commonwealth v. Parker,

619 A.2d 735, 737 (Pa.Super. 1993). A reasonable expectation of privacy

exists when an individual exhibits an actual subjective expectation of privacy

and that expectation is one that society is prepared to recognize as legitimate.

Commonwealth v. Jones, 874 A.2d 108, 118 (Pa.Super. 2005). In order to

discern whether an expectation of privacy is reasonable, the totality of the

circumstances must be considered and the societal interests involved must be

balanced.   Id. at 118 (“The constitutional legitimacy of an expectation of


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privacy is not dependent on the subjective intent of the individual asserting

the right but on whether the expectation is reasonable in light of all the

surrounding circumstances.”).

      Appellant argues that he has shown a reasonable expectation of privacy

in the Ford through his own statement asserting ownership to the police when

he was arrested, along with his corroborating testimony at the suppression

hearing. Appellant’s brief at 19. Additionally, he notes that he had a key to

the vehicle on his person when he was arrested. Id. Finally, while Appellant

could not legally operate the vehicle because he had a suspended license, he

claims the Commonwealth offered nothing at the hearing to dispute his claim

of ownership. N.T. Omnibus Pre-Trial Hearing, 4/11/18, at 72 (arguing that

the vehicle belonged to him because he repeatedly asserted ownership and

the Commonwealth had done nothing to counter his claims).

      It is well-established that the defendant bears the burden of persuasion

with respect to his privacy interest. Commonwealth v. Gordon, 683 A.2d

253, 256 (Pa. 1996).     However, the defendant’s burden does nothing to

absolve the Commonwealth from its burden of proof. To the contrary, the

Commonwealth maintains burdens of production and persuasion throughout

the entire criminal proceedings to prove that it did not obtain the challenged

evidence in violation of the defendant’s rights. Enimpah, supra at 701; see

also Pa.R.Crim.P. 581(H).       Therefore, it necessarily follows that the

Commonwealth may concede a defendant’s privacy interest if it offers no


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rebuttal witnesses or contrary argument to a defendant’s assertions.

Enimpah, supra at 701. If the Commonwealth chooses to focus only on the

legality of the police conduct, than a defendant does not need to establish a

privacy interest. Id.

      A review of the suppression hearing transcript reveals that the

Commonwealth never argued that Appellant did not have a reasonable

expectation of privacy in the vehicle at the suppression hearing.    Despite

introducing testimony from Detective Triana that Appellant was not the

registered owner of the vehicle, once Appellant offered testimony explaining

the discrepancy between the registration and his claims of ownership, the

Commonwealth did nothing to counter his testimony.             Although the

Commonwealth requested time to brief the issue, when it filed a brief it did

not address this argument. See N.T. Omnibus Pre-Trial Hearing, 4/11/18, at

77-78; see also Commonwealth’s Response to Defendant’s Brief of Omnibus

Pre-Trial Motion, 5/2/18; Commonwealth’s Response to Motion to Reconsider,

6/18/18. Based on the relevant procedural history of this case, and a review

of the case law in this area, we find that the Commonwealth conceded

Appellant’s privacy interest in the Ford when it offered no rebuttal to

Appellant’s assertion of ownership despite the contrary registration.    See

Enimpah, supra at 701.

      Consequently, the trial court did not include any analysis or render a

decision as to whether Appellant had established a reasonable expectation of


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privacy in the automobile.    See Findings of Fact and Conclusions of Law,

5/7/18. However, it did reach a conclusion regarding the legality of the search

of the vehicle. Therefore, we can infer that the trial court implicitly found

Appellant had established a privacy interest, since its analysis moved past this

threshold question and directly into a discussion of the validity of the search.

Under these circumstances, we find that Appellant has established standing

and an expectation of privacy in the automobile and its contents. Therefore,

we now proceed to consider collectively Appellant’s three claims challenging

the warrantless tow of his vehicle and the search that followed.

      First, Appellant alleges that the warrantless tow of his vehicle from his

grandmother’s    driveway    to   a    parking   garage   was    illegal,   citing

Commonwealth v. Loughnane, 173 A.3d 733 (Pa. 2017). In Loughnane,

our Supreme Court held that the federal automobile exception to the warrant

requirement does not apply to vehicles parked in private residential

driveways.    Id. at 745.   Instead, our High Court found that “warrantless

searches and/or seizures of an automobile [parked in a private residential

driveway] must be supported by both probable cause and exigent

circumstances.” Id. at 744. Appellant argues that the Commonwealth failed

to prove either component, and we agree.

      Probable cause exists where “the facts and circumstances within the

officer’s knowledge are sufficient to warrant a person of reasonable caution in

the belief that an offense has been or is being committed.” Commonwealth


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v. Martin, 101 A.3d 706, 721 (Pa. 2014). When making a probable cause

determination, we consider the totality of the circumstances from the vantage

point of a “prudent, reasonable, cautious police officer on the scene at the

time.”   Id.    Again, “[o]ur standard of review is restricted to establishing

whether the record supports the suppression court’s factual findings;

however, we maintain de novo review over the suppression court’s legal

conclusions.”     Commonwealth v. Korn, 139 A.3d 249, 253 (Pa.Super.

2016).

     Here, before the police towed the vehicle, they were aware that

Appellant had engaged in multiple crack cocaine purchases with a CI from his

residence.      Detective Triana also knew that a previous search warrant

executed at Appellant’s brother’s residence had yielded a large amount of

crack cocaine and stolen firearms. The search warrant at Appellant’s house

uncovered marijuana, MDMA, and marked currency that were used in the

controlled buys, but no crack cocaine or drug packaging materials.

     The day of the search warrant’s execution, police observed Appellant

leave his residence with an opaque bag in hand. He made one stop on his

way to meet with his probation officer, during which he approached the Ford

parked in a private driveway, opened the trunk, and returned to his vehicle

without the bag. The vehicle had three flat tires. The area surrounding the

vehicle was searched by police for the bag, but nothing was recovered. When

Appellant arrived at the courthouse, he was arrested and searched incident to


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arrest. No crack cocaine was found on his person, and Appellant told police

that they would not find any drugs in his home. He claimed ownership of the

Ford, but refused to give any further information regarding the vehicle or the

location of any drugs. Instead, he repeatedly asked the police to take him to

the county jail. Based on his years of experience with Appellant, Appellant’s

family members, and other drug dealers in the area, and his interactions with

Appellant that day, Detective Triana believed that Appellant deposited the bag

in the trunk of the Ford and that it contained crack cocaine.

       At the suppression hearing, the Commonwealth conceded that it did not

have probable cause to believe that the Ford contained evidence of criminal

activity before it towed the vehicle.4 N.T. Omnibus Pre-Trial Hearing, 4/11/18,

at 83.    Appellant was not observed conducting drug sales from his Ford.

Further, because the bag was opaque, the police could not be sure that

Appellant placed drugs in the vehicle.             As a result, we find that the

Commonwealth did not have sufficient evidence of criminal activity connected




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4 In light of Detective Triana’s testimony about the inherent mobility of drugs
and his experience with similarly situated suspects attempting to secret their
drugs in locations away from their homes before meeting with their probation
officers, one could argue that the probable cause determination was closer
than the Commonwealth recognized. However, because the Commonwealth
conceded this point, obviating the need for the defense to dispute the issue,
we believe it would be fundamentally unfair to decide that there was probable
cause. Further, accepting the concession as to probable cause, we do not
reach the issue of exigent circumstances.

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to the vehicle in order to justify its warrantless seizure. Thus, the tow was

illegal.

       Below, the Commonwealth did not dispute that the tow was illegal, but

countered that the independent source doctrine applied and rendered the

evidence   admissible.     The   trial   court   agreed   with   this   argument.

Unfortunately, the Commonwealth and trial court have misconstrued the

independent source doctrine.

       By way of background, the exclusionary rule, bars the use of evidence

at trial that was obtained through an unconstitutional search or seizure.

However, evidence may be admissible if the connection between the unlawful

conduct of the police and the discovery of the challenged evidence has become

“so attenuated as to dissipate the taint.” Wong Sun v. United States, 371

U.S. 471 (1963). Thus, if a “truly” independent source would have permitted

the challenged evidence to be obtained through constitutional police action, it

is possible that the evidence can be “purged” of the “taint” that resulted from

the initial illegal police conduct so that it does not have to be excluded.

Commonwealth v. Henderson, 47 A.3d 797, 799 (Pa. 2012) (citing

Commonwealth v. Melendez, 676 A.2d 226 (Pa. 1996)).                However, this

limited exception does not apply to circumstances involving a knowing

circumvention of an individual’s constitutional rights through intentional police

misconduct. See, e.g., Commonwealth v. Mason, 637 A.2d 251, 253 (Pa.

1993) (balancing police misconduct and privacy interests in the context of the


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independent source doctrine and explaining that it does not give police the

authority to put a battering ram through the front door of a private dwelling

without a warrant or exigent circumstances).

      For example, in Segura v. United States, 468 U.S. 796 (1984), police

illegally entered a private residence without a warrant. The entry was illegal

because, although police had probable cause to search the residence, they did

not also possess the necessary exigent circumstances. However, once inside,

officers merely secured the residence until a search warrant was procured.

Officers did not conduct any investigations or collect any evidence until the

search warrant was issued. The evidence that formed the basis for the search

warrant was derived entirely from sources uncovered prior to the illegal entry.

Since the search warrant and the evidence upon which it was based were

unrelated to the illegal entry, the Supreme Court found that the evidence

recovered during the execution of the warrant was admissible through the

independent source doctrine.

      Based on the foregoing review of the independent source doctrine, it is

clear that whether the Commonwealth can meet the criteria of the

independent source doctrine depends on whether the evidence needed to form

the basis for the warrant to search Appellant’s Ford was obtained

independently of the tow of the car. Appellant argues that the Commonwealth

failed to meet this burden. He explains that since the canine sniff could not

have been legally conducted on his grandmother’s property, and the


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Commonwealth has conceded that the canine sniff was essential in

establishing probable cause for the search warrant of the car, the discovery of

cocaine cannot be separated from the illegal tow of his vehicle. Appellant’s

brief at 25-26. We agree.

       In Pennsylvania, we have held that canine sniffs are searches that

invoke state and federal constitutional protection.        Commonwealth v.

Johnston, 530 A.2d 74, 79 (Pa. 1987). However, because they are more

limited searches conducted by human law enforcement officers, they do not

need to be supported by probable cause. Id. Instead, a canine sniff is validly

performed if there was: (1) reasonable suspicion5 to believe that drugs may

be present in the place to be tested, and (2) lawful police presence in the

place where the canine sniff is conducted. Id. at 79.

       Specifically, Appellant argues that the police could not have conducted

the dog sniff on his grandmother’s property because they were not lawfully

present there. The Commonwealth confronted this argument for the first time

in its response to Appellant’s motion for reconsideration.         However, the

Commonwealth did not address whether police could lawfully conduct the dog

sniff on the property. Rather, the Commonwealth maintained, for the first


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5 In order to establish reasonable suspicion, an officer “must articulate specific
observations which, in conjunction with reasonable inferences derived from
those observations, [lead] him to reasonably conclude, in light of his
experience, that criminal activity is afoot” and that the item to be searched
was involved in that activity. Commonwealth v. Basinger, 982 A.2d 121,
125 (Pa.Super. 2009).

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time, that it did not matter whether they could legally conduct a dog sniff on

the property because they could have done so from the public sidewalk that

abutted the residence. However, the Commonwealth presented no evidence

at the suppression hearing to support its bald assertion that such a sniff would

have been possible, and the trial court did not address this argument in its

opinion. Instead, the trial court held, based on Williams, that because the

police were lawfully present where the dog sniff was ultimately conducted, the

sniff was lawful.   Trial Court Opinion, 10/19/18, at 13-14.       The court’s

reasoning misses the mark for the reasons that follow.

      An in-depth analysis of the facts in Williams is instructive.          In

Williams, the Erie police possessed probable cause to believe that the

defendant was dealing drugs out of his vehicle and observed him driving his

vehicle with a suspended license. They arrested him as he was exiting his

vehicle, which he had just parked in his private residential driveway. Instead

of securing a warrant for the vehicle, an officer drove the defendant’s vehicle

to the Erie police station so that a dog sniff could be conducted while they

awaited issuance of a search warrant. Since Loughnane had not yet been

decided, and its articulation of Pennsylvania’s automobile exception was not

yet the law, the defendant’s argument centered on the fact that the police

illegally entered his vehicle. Id. at 622. We found that although the entry

into the vehicle was illegal, no evidence was uncovered as a result. The police

had probable cause to search the car on the premises, and applied for a search


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warrant based upon the probable cause established by the facts known before

the vehicle was seized by police. Therefore, we held that evidence that was

discovered pursuant to the search warrant was admissible through the

independent source doctrine. As a result, the illegal seizure of the vehicle in

Williams was excused, not approved.

      Herein, in stark contrast to Williams, the police admittedly did not have

probable cause to search or seize the car from the private driveway. Instead,

the Commonwealth illegally towed the car to permit a dog sniff to take place

where police were entitled to be, and used those results in order to obtain the

search warrant.     This distinction is critical, since it is the basis for

distinguishing the Williams holding.          Unlike in Williams, here the

Commonwealth admitted that the police needed the positive results of the

canine sniff in order to establish probable cause to obtain a search warrant.

A review of the affidavit of probable cause confirms that the results of the dog

sniff were included in the articulable facts contained in the Commonwealth’s

application for a warrant to search the vehicle. See Commonwealth Exhibit

C, supra at 6. Thus, by illegally towing the vehicle, the Commonwealth placed

itself in a better position than it would have been in without the misconduct.

      Proper application of the independent source doctrine should never

place the Commonwealth in a better position than it would have been in

without engaging in illegal conduct.    Commonwealth v. Brundidge, 620

A.2d 1115, 1119-20 (Pa. 1993).      Simply put, the independent source rule


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cannot apply here because the discovery of contraband was directly

attributable to the illegal seizure of Appellant’s vehicle. This vital distinction

between the facts herein and those in Williams is fatal to the application of

the independent source doctrine. See, e.g., Murray v. United States, 487

U.S. 533, 542 (1988) (holding that the independent source rule is not satisfied

“if information obtained during that [illegal] entry was presented to the

Magistrate and affected his decision to issue the warrant”).

      Further, it has not escaped our notice that, in response to defense

questioning surrounding the decision to tow the vehicle to another location for

purposes of a drug sniff, Detective Triana admitted that an officer involved in

Williams discussed that case with him. Unfortunately, the police and the

Commonwealth misconstrued our holding in Williams and, as a result,

mistakenly relied upon it as providing license for a circumvention of a citizen’s

fundamental constitutional rights.

      Under these circumstances, there was no independent source, unsullied

by the taint of the Commonwealth’s illegal conduct to legitimize the search

and seizure of the contraband. The independent source doctrine is a narrow

exception to the exclusionary rule. Our duty is to ensure that the fundamental

privacy interests of individual citizens are not violated. See Mason, supra at

256 (“[O]ur task is not merely to deter police misconduct, but also to

safeguard privacy[.]”). Accordingly, since the Commonwealth’s illegal seizure

of Appellant’s vehicle is not vitiated by the independent source doctrine, we


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are compelled to vacate the judgment of sentence, reverse the trial court’s

denial of Appellant’s suppression motion, and remand for a new trial without

the illegally obtained evidence.

      Judgment of sentence vacated.      Suppression order reversed.   Case

remanded for a new trial. Jurisdiction relinquished.

      Judge Musmanno joins the memorandum.

      Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2020




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