J-S74025-13



                              2014 PA Super 283



COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DELANO E. PEREL

                         Appellant                     No. 704 WDA 2013


           Appeal from the Judgment of Sentence of March 27, 2013
               In the Court of Common Pleas of Mercer County
              Criminal Division at No.: CP-43-CR-0000618-2011


BEFORE: PANELLA, J., OLSON, J., and WECHT, J.

OPINION BY WECHT, J.:                            FILED DECEMBER 23, 2014

        Delano Perel appeals the judgment of sentence entered on March 27,

2013.     We vacate Perel’s judgment of sentence, and we remand for

additional proceedings consistent with this opinion.

        On April 21, 2011, Officer Louis Squatrito of the Hermitage Police

Department responded to a report of an armed robbery. When he arrived at

the scene, Officer Squatrito found Darius Holcomb hiding in the woods

behind an apartment building.        According to Holcomb, he and his former

cellmate, Perel, departed together for an overnight trip on that evening.

While traveling together (with Perel driving and Holcomb in the passenger

seat), Perel announced that he needed to stop at his girlfriend’s apartment.
J-S74025-13



Perel pulled into an apartment complex, shut off the engine, and pulled a

small brown leather bag from underneath the driver’s seat.

       Perel told Holcomb to “run it,”1 and Holcomb observed a handgun

protruding from the leather bag. After Holcomb handed Perel approximately

$100, Perel exited the vehicle and walked into one of the apartments, taking

the leather bag with him.           Holcomb ran into a wooded area that was

adjacent to the apartment complex and called the police.        Before Officer

Squatrito arrived at the scene, Holcomb saw Perel—now accompanied by a

black female—drive away in a tan Chevrolet.

       Chad Nych, another officer with the Hermitage Police Department,

received a Mercer County 9-1-1 radio dispatch describing Perel, the unknown

black female, and the tan Chevrolet. Officer Nych subsequently observed a

tan Chevy Impala parked in front of the Sheetz convenience store on Route

18 in Hermitage. When Officer Nych approached the vehicle, he observed a

black male matching Holcomb’s description of Perel and a black female in

the passenger seat.          Officer Nych ordered Perel to exit the vehicle.

Thereafter, Officer Nych searched Perel and discovered a bag of marijuana,

currency, and a marijuana cigarette in Perel’s pockets.      Officer Nych then

took Perel into custody.



____________________________________________


1
    Holcomb explained at trial that “run it” is slang for “give me your
money.” Notes of Testimony Suppression (“N.T.S.”), 11/9/2011, at 13.



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      Sergeant Donald Ott spoke with the female passenger, who he

identified as Tony Smith, Perel’s girlfriend.   Sergeant Ott sought Smith’s

consent to search her apartment located at 1420 Parke Drive. Smith initially

refused to consent to the search but later agreed. Smith signed a written

consent form specifying that the police were searching for a black handgun,

ammunition, and a “black or brown leather bag similar to a hygiene/shaving

kit bag.” Notes of Testimony Suppression (“N.T.S.”), 11/9/2011, at 48.

      In the rear bedroom of Smith’s apartment, officers observed a small

brown leather bag/shaving kit on the foot of the bed, which was consistent

with Holcomb’s description.    Upon opening the bag, Captain Paul Jewell

discovered marijuana, a handgun, ammunition, and condoms.              Captain

Jewell showed these items to Smith, who denied having any knowledge of

them. Captain Jewell also searched two pieces of luggage that were beside

the shaving kit. Therein, he found men’s clothing and a receipt with Perel’s

name on it.

      As a result of these events, Officer Squatrito filed a criminal complaint

charging Perel with robbery, persons not to possess a firearm, forgery,

firearms not to be carried without a license, theft by unlawful taking,

receiving stolen property, delivery of a controlled substance, possession of a




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J-S74025-13



controlled substance, and possession of drug paraphernalia.2                 On October

14, 2011, Perel filed an omnibus pretrial motion to suppress evidence.

Therein, Perel argued that the warrantless search of his shaving kit and

luggage was unconstitutional because Smith lacked the authority to consent

to the search of his personal effects.          Omnibus Motion for Pre-trial Relief,

10/14/2011, at 3 (unnumbered).                 On November 9, 2011, following a

hearing, the trial court denied Perel’s motion to suppress by opinion and

order.

        After the trial court, sua sponte, severed the persons not to possess a

firearm count from the information, Perel proceeded to a jury trial on that

charge alone on November 14, 2012.                On November 16, 2012, the jury

found Perel guilty of persons not to possess a firearm. On March 25, 2013,

Perel    pleaded   guilty   to   possession      with   intent   to   deliver,   and   the

Commonwealth nolle prossed the remaining charges. On March 25, 2013,

the trial court sentenced Perel to five to ten years’ imprisonment for persons

not to possess a firearm with a consecutive term of one to five years’

imprisonment for possession with the intent to deliver.

        On April 23, 2013, Perel timely filed a notice of appeal.            On May 1,

2013, the trial court ordered Perel to file a concise statement of errors


____________________________________________


2
     18 Pa.C.S. §§ 3701(a)(1)(iii), 6105(a)(1), 4101(a)(1), 6106(a)(1),
3921(a), and 3925; 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-
113(a)(32), respectively.



                                           -4-
J-S74025-13



complained of on appeal pursuant to Pa.R.A.P. 1925(b).           Perel timely

complied. On May 31, 2013, the trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a).

      Perel presents one issue for our consideration: “Did the trial court

abuse its discretion in denying [Perel’s] motion to suppress evidence where

[Perel’s] personal belongings were searched without a search warrant?”

Brief for Perel at 4 (capitalization modified).

      Our 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
      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, we are bound by these 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 our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations

omitted).

      “The proponent of a motion to suppress has the burden of establishing

that his own Fourth Amendment rights were violated by the challenged

search or seizure.” Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978). This

is so because “Fourth Amendment rights are personal rights which, like


                                      -5-
J-S74025-13



some other constitutional rights, may not be vicariously asserted.”    Id. at

133–34 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174

(1969)).   Thus, before a defendant may challenge a search or seizure on

Fourth Amendment grounds, he or she must demonstrate a reasonable

expectation of privacy in the place that was searched.

     As articulated by Justice John Marshall Harlan in his oft-quoted

concurrence in Katz v. United States, a person who challenges a search or

seizure on Fourth Amendment grounds must demonstrate (1) that he or she

had a subjective expectation of privacy, and (2) that his or her subjective

expectation of privacy is one that society is prepared to recognize as

reasonable and legitimate.      389 U.S. 347, 361 (1967) (Harlan, J.,

concurring).

     With regard to Perel’s subjective expectation of privacy in the contents

of his luggage and shaving bag, it is well established that the key inquiry is

whether Perel “took normal precautions to maintain his privacy.” Rawlings

v. Kentucky, 448 U.S. 98, 105 (1980); Smith v. Maryland, 442 U.S. 735,

740 (1979) (explaining that an individual exhibits a subjective expectation of

privacy if he or she sought to preserve something as private).      Instantly,

Perel placed his possessions in an opaque leather bag.      He then zippered

that bag closed and stored it in the “back bedroom” of his girlfriend’s




                                    -6-
J-S74025-13



apartment (specifically “on the foot of the bed”). N.T.S. at 49. Moreover,

Perel did not inform Smith of the contents of the bag. Id. at 50.3

       The United States Supreme Court has held that searches of closed

containers (i.e., personal luggage) intrude upon protected privacy interests

as a matter of law. See New Jersey v. T.L.O., 469 U.S. 325, 337 (1985)

(“[T]he Fourth Amendment provides protection to the owner of every

container that conceals its contents from plain view.” (quoting United

States v. Ross, 456 U.S. 798, 822–23 (1982)).              Hence, the search of

Perel’s luggage and shaving kit violated Perel’s subjective expectation of

privacy.

       Turning to the second prong of the Katz test, Perel’s subjective

expectation of privacy must be one that society is prepared to recognize as

reasonable.      Katz, 389 U.S. at 361.          No single factor determines the

legitimacy of an individual’s claim that a particular area should be free from

warrantless government intrusion. Rakas, 439 U.S. at 152–53 (Powell, J.,

concurring). Our analysis may turn on factors such as (1) the intention of

____________________________________________


3
      At the suppression hearing, Captain Jewell testified that Smith denied
having knowledge of the contents of Perel’s shaving kit. N.T.S. at 50. The
learned Dissent maintains that “[t]here was no evidence regarding what
[Perel] may or may not have told [Smith] about his shaving kit.” Dis. Op. at
1-2, n.1. Of course, if Perel had told Smith about the items in his bag then
she would have known about them. Although we are limited to considering
only the evidence of the Commonwealth and so much of the evidence for the
defense as remains uncontradicted, Jones, supra, we are not required to
suspend logic and common sense.



                                           -7-
J-S74025-13



the Framers of the Fourth Amendment, Oliver v. United States, 466 U.S.

170, 178 (1984); (2) the uses to which an individual has put a particular

location, Jones v. United States, 362 U.S. 257, 265 (1960); and (3)

society’s understanding that certain areas deserve “the most scrupulous

protection from government invasion.” Oliver v. United States, 466 U.S.

170, 178 (1984).

     The United States Supreme Court applied these principles in Bond v.

United States, 529 U.S. 334 (2000), concluding that a Border Patrol

agent’s physical manipulation of a bus passenger’s carry-on luggage violated

the Fourth Amendment. Id. at 338–39. In that case, Bond, a passenger on

a Greyhound bus, stored his green canvas bag in a storage compartment

above his seat. When the bus stopped at a permanent border checkpoint, a

Border Patrol agent physically squeezed and manipulated the contents of

Bond’s overhead bag.      The agent felt a “brick-like” object in Bond’s bag,

which the agent later determined to be a “brick” of methamphetamine

wrapped in duct tape. Id. at 336.

     The Supreme Court rejected the government’s contention that Bond

did not maintain a reasonable expectation of privacy in a container that he

exposed to public view:

     When a bus passenger places a bag in an overhead bin, he
     expects that other passengers or bus employees may move it for
     one reason or another. Thus, a bus passenger clearly expects
     that his bag may be handled. He does not expect that other
     passengers or bus employees will, as a matter of course, feel the
     bag in an exploratory manner. But this is exactly what the agent
     did here.

                                     -8-
J-S74025-13



Id.

       We find nothing in the instant matter that materially distinguishes this

case from the circumstances in Bond.4 Perel stored his luggage and shaving

kit in his girlfriend’s bedroom along with his other belongings. This location

is not any more “exposed to public view” than an overhead storage

compartment on a Greyhound bus. Furthermore, the police opened Perel’s

luggage and shaving kit and explored their contents.            Hence, the instant

search was far more invasive than the agent’s unconstitutional “physical

manipulation” of Bond’s canvas bag.

       Indeed, the obvious function of an opaque zippered bag is to

safeguard the privacy of the personal effects contained therein. See United

States v. Chadwick, 433 U.S. 1, 13 (1977). (“Unlike an automobile, whose

primary function is transportation, luggage is intended as a repository of

personal effects.” (emphasis added)).             An understanding that personal,

private effects are commonly stored in purses, backpacks, luggage, and

duffel bags can be gleaned from a casual stroll down any sidewalk.            The

contents of persons’ closed containers are obscured from public view and

generally are recognized as private.           This expectation of privacy becomes

even more robust when a person’s private, closed container is within the
____________________________________________


4
      See also United States v. Jacobsen, 466 U.S. at 111, 114–15
(1984) (suggesting that the warrantless search of an “ordinary cardboard
box wrapped in brown paper” would have violated the Fourth Amendment
had a private third-party not already opened it).



                                           -9-
J-S74025-13



home of a loved one.           Perel’s luggage and shaving kit, therefore, are

deserving of “the most scrupulous protection from government invasion.”

Oliver v. United States, 466 U.S. 170, 178 (1984).

       Perel’s belongings were not openly visible, or even accessible, to the

general public. The opaque containers clearly belonged to Perel. They were

closed.     They contained personal items, including men’s clothing and

condoms.      It beggars belief to suggest that our society would deem it

unreasonable to expect that these personal items will be kept private.5

Perel’s subjective expectation of privacy in the contents of his baggage, as

evidenced by the totality of the circumstances, is one that society would

recognize as reasonable.6


____________________________________________


5
      When confronted with a factually analogous case, the Supreme Court
of Arkansas reached the same conclusion. Moore v. State, 594 S.W.2d 245
(Ark. 1980) (“There could hardly be anything which would be considered
more private than a shaving kit which ordinarily includes one’s toothbrush,
toothpaste, shaving equipment, medication and other highly personal
items.”).
6
       In contrast, cases in which a defendant has failed to demonstrate a
reasonable expectation of privacy in a particular area are both rare and self-
evidently distinguishable. See California v. Greenwood, 486 U.S. 35
(1988) (holding that society would not accept as reasonable a defendant’s
claim that he had a reasonable expectation of privacy in garbage that has
been left outdoors for collection in an area accessible to the general public);
California v. Ciraolo, 476 U.S. 207 (1986) (holding that the Fourth
Amendment does not require that the police obtain a warrant before
conducting surveillance of a fenced backyard from a private plane flying at
an altitude of 1,000 feet).




                                          - 10 -
J-S74025-13



       Having concluded that the suppression record demonstrates that Perel

had a reasonable expectation of privacy in his luggage and shaving kit, we

now must address whether the warrantless search of Perel’s luggage falls

within   the    consent     exception     to   the   Fourth   Amendment’s   warrant

requirement.7 The trial court ruled that it did, concluding that “[t]he search

of [Perel’s] brown leather bag . . . was lawful in that there were no

restrictions on the scope of [Smith’s] consent.”                Trial Court Opinion

(“T.C.O.”), 11/10/2011, at 8 (unnumbered).               Perel, on the other hand,

contends that the scope of Smith’s consent did not, and could not, extend to

Perel’s leather shaving kit and luggage because Smith did not have common

authority, joint access, or mutual use of those items. Brief for Perel at 14.

We agree.




____________________________________________


7
      We focus our analysis upon the search of Perel’s shaving kit.
Nonetheless, the Dissent devotes a considerable amount of attention to
emphasizing its belief that the seizure of the shaving kit was lawful. See
Diss. Op. at 3, 11, 12, 13, 19, 20. Although it may be true that a seizure of
the container prior to searching it would be constitutional, the record is not
at all clear that such a sequence of events actually occurred. In other
words, a seizure would be constitutional only if it happened before the
search. However, Captain Jewell testified that he opened Perel’s shaving kit
immediately upon noticing it. N.T.S. at 49. Thus, the Dissent’s insistence
that the seizure was constitutional is not only immaterial to the ultimate
resolution of the issue in this case, i.e., the constitutionality of the search of
the kit, but it is also not even clear from the record that the kit was in fact
seized before it was searched.




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J-S74025-13



      It is well-settled that a homeowner who lacks access to, or control

over, a guest’s private closed containers also lacks the authority to consent

to a search of them.

      A privacy interest in a home itself need not be coextensive with
      a privacy interest in the contents or movements of everything
      situated inside the home. This has been recognized before in
      connection with third-party consent to searches. A homeowner’s
      consent to a search of the home may not be effective consent to
      a search of a closed object inside the home. Consent to search a
      container or a place is effective only when given by one with
      “common authority over or other sufficient relationship to the
      premises or effects sought to be inspected.” United States v.
      Matlock, 415 U.S. 164, 171 (1974). “Common authority . . .
      rests . . . on mutual use of the property by persons generally
      having joint access or control for most purposes . . . .” Id. at
      171, n.7.

United States v. Karo, 468 U.S. 705, 725 (1984) (O’Connor, J.,

concurring) (citations modified).

      The critical inquiry is not whether Smith had the authority to consent

to the search of her own apartment, but rather whether she had the actual

authority, or the apparent authority, to consent to the search of Perel’s

closed containers stored therein. Matlock, 415 U.S. at 171. It is clear that

she did not. The Commonwealth presented no evidence at the suppression

hearing that Smith had mutual use of, joint access to, or control of Perel’s

baggage. To the contrary, Captain Jewell testified that Smith denied having

knowledge of the contents of Perel’s shaving kit. N.T.S. at 50. Thus, the

search of Perel’s belongings can not be justified based upon Smith’s actual

authority to consent.


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      As stated, we also must consider the possibility that Smith had the

apparent authority to consent to a search of Perel’s luggage and shaving kit.

The Supreme Court of the United States has held that a warrantless search

is lawful when it is based upon the consent of a third party who the police

reasonably believe has common authority over the items to be searched, but

who in fact does not have such authority. Illinois v. Rodriguez, 497 U.S.

177, 186 (1990).     Our own Supreme Court has described this “apparent

authority exception” to the Fourth Amendment’s warrant requirement as

follows:

      A third party with apparent authority over the area to be
      searched may provide police with consent to search. Third party
      consent is valid when police reasonably believe a third party has
      authority to consent.      Specifically, the apparent authority
      exception turns on whether the facts available to police at the
      moment would lead a person of reasonable caution to believe
      the consenting third party had authority over the premises. If
      the person asserting authority to consent did not have such
      authority, that mistake is constitutionally excusable if police
      reasonably believed the consenter had such authority and police
      acted on facts leading sensibly to their conclusions of probability.

Commonwealth v. Strader, 931 A.2d 630, 634 (Pa. 2007) (citations

omitted).

      In Commonwealth v. Blair, 575 A.2d 593, 598 (Pa. Super. 1990),

we elucidated the narrow confines of the apparent authority exception.

      [W]e are not allowing carte blanche consent entries into
      residences with the police officer being able to ratify his entry at
      a later date suppression hearing by merely stating that he was
      mistaken as to the actual authority of the consenting party. We
      hold that the police officer’s reasonable mistake must be judged
      from an objective standard based on the totality of the

                                     - 13 -
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      circumstances. Although the police officer’s state of mind is one
      factor to be considered in determining the reasonability of the
      mistake, it is not the only factor. Moreover, the police officer’s
      mistake must be reasonable. In ambiguous situations, those
      situations which would cause a reasonable person to question
      the consenting party’s actual authority or if the consenting
      party’s assertions of authority appear unreasonable, a police
      officer should make further inquiries to determine the status of
      the consenting party. Reliance on a third party’s bald assertion
      in such situations could subject any search to the remedy of the
      exclusionary rule.

Id. (footnote omitted).

      Viewing   the   instant   matter   in   light   of   these   principles,   the

Commonwealth’s attempt to show the legitimacy of Smith’s consent falls

short. The facts known to the police at the time of the search were such

that an objectively reasonable officer would have concluded that Smith did

not have authority to consent to the search of Perel’s baggage.            Indeed,

Captain Jewell, at the suppression hearing, candidly described the search as

follows:

      District Attorney: After obtaining consent to search from
      [Smith,] what did you do next Captain?

      Captain Jewell: I entered the apartment.

      District Attorney: And you just walk in?

      Captain Jewell: Because of the nature of the call, a gun
      involved, we cleared the apartment first to make sure no other
      persons were present and there were not.

      District Attorney: Okay. And you searched the apartment?

      Captain Jewell: Yes sir.

      District Attorney: And what does that entail?




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J-S74025-13


       Captain Jewell: I ended up going to the back bedroom as part
       of the clearing. After I cleared it, I immediately saw a small bag,
       shaving bag, on the foot of the bed.

       District Attorney: And what was it—when you observed it,
       what did you immediately notice?

       Captain Jewell: It fit the description of what the victim had told
       me.

       District Attorney: Okay. And what did you do next?

       Captain Jewell: I opened it.

                                               ***

       Captain Jewell: I did see two pieces of luggage on the bed
       containing men’s clothing.

       District Attorney: And did you search the luggage?

       Captain Jewell: I looked through the luggage and I found a
       slip, a hotel receipt in the name of [Perel.]

N.T.S. at 48-49.

       Based upon the totality of the circumstances, it was unreasonable for

Captain Jewell to believe that Smith had the authority to consent to a search

of a men’s shaving bag or the two other pieces of luggage lying beside it.

These items, as a matter of common sense, necessarily command a high

expectation of privacy.8       The Commonwealth does not contend that Smith
____________________________________________


8
       See 3 W. LaFave, Search and Seizure, § 8.5(d), at 307 (2d ed. 1987)
(“Among the articles which it would seem would most commonly be
deserving of the ‘high expectation of privacy’ label in the host-guest context
would be the overnight bag or suitcase.”); United States v. Wilson, 536
F.2d 883 (9th Cir. 1976) (holding that a homeowner’s consent to search a
guest’s suitcase was invalid), cert. denied, 429 U.S. 982 (1976); cf. United
States v. Sealey, 830 F.2d 1028 (9th Cir. 1987) (holding that boxes and
plastic buckets are not containers that are commonly used to preserve
(Footnote Continued Next Page)


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J-S74025-13



carried either item on her person. There were no markings, tags, or other

inscriptions to suggest that Smith had joint access to, or co-ownership of,

Perel’s baggage.        Under these circumstances, it belies common sense to

infer that Smith had the authority to use, access, or control Perel’s suitcase

and shaving kit.

      Furthermore, the police were acting in response to a report that Perel

himself had brandished a leather shaving bag in the course of a robbery.

According to Holcomb, Perel carried the leather shaving bag, with a black

firearm concealed therein, into an apartment building on Parke Drive. After

the police found and arrested Perel, Smith signed a written consent to

search her apartment, which was located at 1420 Parke Drive. Among the

items that officers listed on the consent form were a black handgun and a

black or brown leather shaving bag. All of these facts, which the police knew

at the time of the search, render any belief that Smith had authority to

consent to a search of Perel’s property objectively unreasonable. Thus, the

warrantless inspection of the contents within Perel’s luggage and shaving kit

can not be justified as a lawful consent search.9

                       _______________________
(Footnote Continued)

privacy and therefore the defendant’s girlfriend’s consent to search them
was valid).
9
      Although not binding upon us, our conclusion is supported by several
Federal courts of appeals that have considered the apparent authority
exception in factually analogous cases. United States v. Welch, 4 F.3d
761 (9th Cir. 1993) (holding that officers had no reasonable basis to believe
that the defendant’s boyfriend’s control over her purse meant that he had
(Footnote Continued Next Page)


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      Having determined that the instant search was unconstitutional, we

now must address the learned Dissent’s contention that the evidence should

not be suppressed because of the doctrine of inevitable discovery. According

to the Dissent, the facts of this case do not merit application of the

exclusionary rule because “there was ample evidence to establish probable

cause in support of a warrant to search the contents of the shaving kit.”

Dis. Op. at 13 (footnote omitted).

      The Supreme Court of the United States announced the inevitable

discovery exception to the exclusionary rule in Nix v. Williams, 467 U.S.

431 (1984). The Nix Court held that the fruits of an unconstitutional search

are admissible where “the prosecution can establish by a preponderance of

the evidence that the information ultimately or inevitably would have been

discovered by lawful means.” Id. at 444. However, due to the concomitant

protections    afforded      by    Article    I,   Section   8   of   the   Pennsylvania

Constitution,10 our inevitable discovery jurisprudence does not mirror its
                       _______________________
(Footnote Continued)

actual or apparent authority to consent to a search of it); United States v.
Salinas-Cano, 959 F.2d 861, 864, (10th Cir. 1992) (holding that
defendant’s girlfriend did not have apparent authority to consent to the
search of his luggage because a reasonable person would have known that
people generally retain a high expectation of privacy in closed suitcases).
10
      The Pennsylvania Constitution provides:

      The people shall be secure in their persons, houses, papers and
      possessions from unreasonable searches and seizures, and no
      warrant to search any place or to seize any person or things
      shall issue without describing them as nearly as may be, nor
(Footnote Continued Next Page)


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federal counterpart.       Commonwealth v. Mason, 637 A.2d 251, 256 (Pa.

1993). Our Supreme Court has explained this disparity as follows:

      If our sole purpose in applying Article I, Section 8 to the facts of
      this case were to deter police misconduct, we would be
      constrained to rule in favor of the Commonwealth, for in
      balancing the interests, it is apparent that society’s interest in
      arresting those guilty of serious crime should not be thwarted
      where police would inevitably and independently arrive at the
      same evidence, but for their illegal conduct. However, where
      our task is not merely to deter police misconduct, but also to
      safeguard privacy and the requirement that warrants shall be
      issued only upon probable cause, our conclusion is different.

Id. at 256.

      In Commonwealth v. Berkheimer, 57 A.3d 171 (Pa. Super. 2012)

(en banc), we discussed extensively the doctrine of inevitable discovery. In

that case, the appellant’s stepfather, knowing that the appellant was wanted

on a probation detainer, provided the Pennsylvania State Police with

information regarding the appellant’s whereabouts. Id. at 174. When the

police arrived at the address provided to them by the appellant’s stepfather,

they detected an odor of burnt marijuana wafting from the residence. Id. at

174-75. The officers entered into the home despite the fact that they did

not have a warrant to do so.           Id. at 175.   Once inside, officers observed

numerous glass marijuana pipes, a plastic bag and a pill bottle containing

                       _______________________
(Footnote Continued)

      without probable cause, supported by oath or affirmation
      subscribed to by the affiant.

Pa. Const. art. I, § 8.



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marijuana, and several rounds of pistol ammunition. Id. The officers then

secured a warrant to search the residence (based, at least in part, upon the

items that they observed during the prior illegal entry into the home). Id.

That search revealed three additional small bags of marijuana and a digital

scale. Id. at 176.

     Following his arrest, the appellant filed a motion to suppress all of the

evidence seized by the police.   The suppression court recognized that the

troopers’ search of the residence was unlawful, notwithstanding the belated

issuance of a search warrant, but denied suppression. Specifically, the court

reasoned that, because the smell of marijuana that the troopers detected

provided probable cause for the issuance of a warrant, the evidence

inevitably would have been discovered. Id. at 176 (citing Nix v. Williams,

467 U.S. 431 (1984)).

     On appeal, an en banc panel of this Court rejected the suppression

court’s logic, and held that the lower court erred in failing to suppress the

evidence that was obtained pursuant to the search warrant.         The Court

further held that, where law enforcement officers engage in apparent

misconduct by negating the warrant requirement, the Commonwealth only

can avoid suppression by demonstrating a source “truly independent from

both the tainted evidence and the police or investigative team which




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engaged in the misconduct.” Id. (quoting Commonwealth v. Mason, 637

A.2d 251, 257-58 (Cappy, J. concurring)).11

       Instantly, as in Berkheimer, the Commonwealth cannot satisfy these

demanding requirements.12           The record is devoid of any suggestion that

there was an alternative justification that would have permitted Captain

Jewell to open and inspect the contents of Perel’s shaving kit. The Dissent

misconstrues the doctrine of inevitable discovery as an invitation for

appellate courts to overlook patently unconstitutional searches whenever the


____________________________________________


11
       The learned Dissent contends that Berkheimer is distinguishable from
the instant case, largely based upon insignificant differences between the
facts of the two cases. It is true that the facts of the instant case do not
align perfectly with those from Berkheimer. However, we do not cite
Berkheimer for its facts; rather, we cite that case for the indisputably
applicable legal principle that emerged from that case and that is applicable
here. The en banc panel of this Court in Berkheimer held that having
probable cause to obtain a search warrant does not negate an otherwise
illegal search. Berkheimer, 57 A.3d at 174 (holding that “the evidence
seized was not subject to discovery by way of an independent source, and
therefore is not purged of the taint of illegality”). In other words, the fact
that police could have obtained a valid warrant (and, as the Dissent would
hold, would have obtained a warrant), does not excuse constitutional
errors, unless a truly independent source can be shown. A fair reading of
Berkheimer, in which the en banc panel reviewed all of the leading cases in
this area, demonstrates that the principle that possessing probable cause to
obtain a warrant is insufficient to overcome illegal searches applies broadly
to all search and seizure cases. Berkheimer simply is not as limited as the
Dissent maintains, and can offer no support to the Dissent’s position.
12
      Tellingly, the Commonwealth did not—either at the suppression
hearing or before this Court—argue that the contents of Perel’s shaving kit
would inevitably have been discovered.




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police could have complied with the Constitution’s warrant requirement, but

instead consciously disregarded it.            Unsurprisingly, the Dissent cites no

authority to support such a constitutionally infirm precept.13          Far from a

“discrete constitutional transgression,” See Dis. Op. 13, the idea that law

enforcement officers may obviate the need to secure a search warrant based

upon their own determination that sufficient probable cause exists is

antithetical to the Fourth Amendment. As stated by Justice Robert Jackson

in Johnson v. United States, 333 U.S. 10 (1948):

       The point of the Fourth Amendment, which often is not grasped
       by zealous officers, is not that it denies law enforcement the
       support of the usual inferences which reasonable men draw from
       evidence.    Its protection consists in requiring that those
____________________________________________


13
      Although the Dissent refers to the instant search as a “textbook”
example of inevitable discovery, none of the cases that it cites stand for the
proposition that the mere existence of probable cause is sufficient to justify
application of the doctrine. See Commonwealth v. Van Winkle, 880 A.2d
1280, 1285 (Pa. Super. 2005) (holding that the evidence in question would
have inevitably been discovered when police conducted a full search incident
to a lawful arrest); Commonwealth v. Ingram, 814 A.2d 264, 272 (Pa.
Super. 2002) (same); Commonwealth v. Hoffman, 589 A.2d 737, 743,
(Pa. Super. 1991) (same); Commonwealth v. Miller, 724 A.2d 895, 899,
n.5 (Pa. 1999) (stating in dicta that evidence would have been admissible
based upon the inevitable discovery doctrine, but failing to elaborate);
Commonwealth v. Albrecht, 720 A.2d 693, 702 n. 11 (Pa. 1998) (holding
that trial counsel was not ineffective for failing to file a suppression motion
where firefighters entered appellant’s home and where appellant consented
to a subsequent search on the following day); Commonwealth v. Garcia,
661 A.2d 1388, 1392, n.11 (Pa. Super. 1995) (holding that the appellant
had waived his suppression issue on appeal, but stating in dicta that the
contraband would inevitably have been discovered during a search incident
to a lawful arrest); Commonwealth v. Speaks, 505 A.2d 310, 313 (Pa.
Super. 1986) (holding that, despite Miranda violation, discovery of evidence
was inevitable where officers already had obtained a valid search warrant).



                                          - 21 -
J-S74025-13


     inferences be drawn by a neutral and detached magistrate
     instead of being judged by the officer engaged in the often
     competitive enterprise of ferreting out crime. Any assumption
     that evidence sufficient to support a magistrate’s disinterested
     determination to issue a search warrant will justify the officers in
     making a search without a warrant would reduce the
     Amendment to a nullity[.]

Id. at 11 (footnote omitted).

     To hold that courts simply may make a post-hoc determination that

sufficient probable cause existed at the time of an otherwise illegal search

would be to eliminate the key safeguard that “delineat[es] the dignity of the

individual living in a free society.” Commonwealth v. Edmunds, 586 A.2d

887, 899 (Pa. 1991). Such an approach patently is at odds with the strong

notions of privacy that are carefully safeguarded by Article I, Section 8 of

the Pennsylvania Constitution. Id. (“[T]he exclusionary rule in Pennsylvania

has consistently served to bolster the twin aims of Article I, Section 8; to-

wit, the safeguarding of privacy and the fundamental requirement that

warrants shall only be issued upon probable cause.”).

     Stated simply, the inevitable discovery doctrine is not a substitute for

the warrant requirement. Police must demonstrate that the evidence would

have been discovered absent the police misconduct, not simply that they

somehow could have lawfully discovered it. Instantly, the record is devoid

of any suggestion that, absent Captain Jewell’s unconstitutional search of

Perel’s shaving kit, the items would have been discovered.            To hold

otherwise, as the Dissent would do, would eradicate the need for police

officers ever to obtain a constitutionally supported search warrant.    Under

                                    - 22 -
J-S74025-13



the Dissent’s view, police only need to seize the item or search the premises

and then invoke the inevitable discovery doctrine with the assertion that

they “could have obtained a warrant.”              The inevitable discovery doctrine

does not operate in such a constitutionally impoverished manner.

       Because Perel had a reasonable expectation of privacy in his luggage

and shaving kit, and because Smith could not validly consent to a search of

those items and it was unreasonable for the police to believe that she

possessed the authority to do so, the trial court erred in concluding that

Smith lawfully consented to the warrantless search of Perel’s private closed

containers. Moreover, the search of Perel’s belongings does not fall within

the narrow confines of the inevitable discovery doctrine.           Accordingly, we

vacate Perel’s judgment of sentence, order that the evidence subject to

Perel’s motion be suppressed, and remand for a new trial.14

       Judgment      of   sentence     vacated.       Case   remanded   for   further

proceedings consistent with this opinion. Jurisdiction relinquished.


____________________________________________


14
      We note that, in his suppression motion, Perel challenged both the
search of his shaving kit (which contained a firearm, ammunition, and three
packets of marijuana) and the seizure of marijuana from his person at the
time of his arrest. Nevertheless, because Perel pleaded guilty to possession
with intent to deliver, he has waived all non-jurisdictional claims relating to
that offense except for the voluntariness of his plea and the legality of his
sentence. Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.
2013). Hence, our conclusion that the trial court erred in denying Perel’s
motion to suppress evidence does not affect his guilty plea to possession
with intent to distribute.



                                          - 23 -
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     Judge Panella joins the opinion.

     Judge Olson files a dissenting opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




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