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(s): CP-43-CR-0000618-2011


BEFORE: PANELLA, OLSON AND WECHT, JJ

DISSENTING OPINION BY OLSON, J.:                  FILED DECEMBER 23, 2014

      Because I believe that the trial court properly denied suppression, I

would affirm Appellant’s judgment of sentence.            Hence, I respectfully

dissent.

      In this case, the learned majority concludes that Appellant established

an expectation of privacy in the shaving kit recovered by police from Ms.

Smith’s apartment.        Initially, the majority concludes that Appellant had a

subjective expectation of privacy in the contents of his shaving kit because it

was an opaque zippered bag, stored in Ms. Smith’s bedroom, not exposed to

public view, and because Appellant did not tell Ms. Smith about the contents
J-S74025-13



of his shaving kit.1 Majority Opinion, at * 6-8. Next, the majority concludes

that society would recognize Appellant’s privacy expectation in the contents

of his shaving kit as reasonable. Majority Opinion, at * 7-10. The majority

also considers whether Ms. Smith had actual or apparent authority to

consent to a search of the contents of Appellant’s zipped shaving kit which

he stored in her apartment. Id. at * 11. The majority concludes that Ms.

Smith lacked actual authority because she denied knowledge of the contents

of the shaving kit. Id. The majority also concludes that it was unreasonable

for police to believe that Ms. Smith had apparent authority to permit the

police to search the contents of the shaving kit because: (1) it was a man’s

shaving kit; (2) there were no markings, tags or other inscriptions to

suggest that Ms. Smith had joint access to or co-ownership of the bag; (3)

police were acting in response to a report that Appellant himself brandished
____________________________________________


1
  While the majority claims that Appellant “did not inform [Ms.] Smith of the
contents of the bag[,]” Majority Opinion, at * 6, the record, which must be
viewed in the light most favorable to the Commonwealth as the prevailing
party on Appellant’s motion to suppress, does not support this assertion.
Neither Appellant nor Ms. Smith testified at the suppression hearing. The
only relevant testimony pertaining to this issue came from the officer who
conducted the search of Ms. Smith’s apartment. The officer testified that,
upon showing Ms. Smith the contents of the shaving kit, she disavowed
knowledge of the contents and permitted police to continue searching. N.T.,
11/9/2011, at 48-49 (“I showed the items to the apartment renter, M[s.]
Smith, and asked her if she knew about these and she said no.”). There was
no evidence regarding what Appellant may or may not have told Ms. Smith
about his shaving kit. In the absence of such testimony, I do not believe
that it is proper to draw an inference against the Commonwealth as the
prevailing party before the trial court.




                                           -2-
J-S74025-13



a leather shaving kit in the course of the robbery; and, (4) there was no

evidence that Ms. Smith carried the shaving kit, or Appellant’s other

luggage, on her person. Id. at * 13-15.

       The majority fails to distinguish between Appellant’s shaving kit, as a

container that outwardly displayed incriminating characteristics that were

immediately apparent to the police when they lawfully entered Ms. Smith’s

bedroom, and the contents of Appellant’s shaving kit that were revealed

only after a search.       This distinction is a critical component of any legal

analysis tailored to the undisputed facts presented in this unique case.

When this distinction is factored in to an examination of the current

circumstances, I believe that the police were constitutionally justified in

seizing Appellant’s shaving kit under the plain view doctrine. First, there is

no dispute that Ms. Smith had authority to consent to a search of her

apartment, including her rear bedroom where Appellant openly stored his

shaving kit.     Thus, the police were at a lawful vantage point when they

observed the shaving kit.          Moreover, as demonstrated by the majority’s

recitation of the facts, the police immediately identified the incriminating

features of the shaving kit2 based upon the victim’s description of the

shaving kit bag used by Appellant during the commission of a gunpoint

robbery. Under these unique circumstances, the seizure of the shaving kit

____________________________________________


2
  I refer here to the outward appearance of the shaving kit itself, not to its
contents.



                                           -3-
J-S74025-13



did not intrude upon Appellant’s privacy interest or violate his Fourth

Amendment rights. However, after careful consideration, I must concur in

the learned majority’s assessment that the ensuing warrantless search of

the zippered shaving kit was not constitutionally justified. I cannot agree,

however, that suppression is the appropriate remedy in view of the doctrine

of inevitable discovery.

      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. […T]he 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 and

quotations omitted).

      “Both the Fourth Amendment to the United States Constitution and

Article I, § 8 of the Pennsylvania Constitution protect citizens from

unreasonable searches and seizures.    Commonwealth v. Gillespie, 2014

PA Super 245, at * 3 (citation omitted).     These constitutional provisions


                                    -4-
J-S74025-13


have been interpreted as protecting “those zones where one has a

reasonable expectation of privacy.” Commonwealth v. Lawley, 741 A.2d

205, 209 (Pa. Super. 1999) (citation omitted). “Not every search must be

conducted pursuant to a warrant, for the Fourth Amendment bars only

unreasonable searches and seizures.” Gillespie, at *3. “While a search is

generally not reasonable unless executed pursuant to a warrant, the

Supreme Court of the United States and [the Pennsylvania Supreme Court]

have recognized exceptions to the warrant requirement.” Id.       The United

States Supreme Court has stated:

        [T]he Fourth Amendment protects people, not places. What
        a person knowingly exposes to the public, even in his own
        home or office, is not a subject of Fourth Amendment
        protection. But what he seeks to preserve as private, even
        in an area accessible to the public, may be constitutionally
        protected.

Katz v. United States, 389 U.S. 347, 351 (1967)(internal citations

omitted). As noted by Justice Harlan, in a concurrence in Katz,

        As the Court's opinion states, ‘the Fourth Amendment
        protects people, not places.’ The question, however, is
        what protection it affords to those people. Generally, as
        here, the answer to that question requires reference to a
        ‘place.’ My understanding of the rule that has emerged
        from prior decisions is that there is a twofold requirement,
        first that a person has exhibited an actual (subjective)
        expectation of privacy and, second, that the expectation be
        one that society is prepared to recognize as ‘reasonable.’
        Thus a man's home is, for most purposes, a place where he
        expects privacy, but objects, activities, or statements that
        he exposes to the ‘plain view’ of outsiders are not
        ‘protected’ because no intention to keep them to himself
        has been exhibited. On the other hand, conversations in the
        open would not be protected against being overheard, for

                                   -5-
J-S74025-13


        the expectation of privacy under the circumstances would
        be unreasonable.

Katz, 389 U.S. at 361 (Harlan, concurring).

      The United States Supreme Court decision in Horton v. California,

496 U.S. 128 (1990) discusses the plain view doctrine in detail. In Horton,

police officers investigating an armed robbery applied for a search warrant of

the suspect’s residence.   The search warrant authorized a search for the

proceeds of the robbery, but not the firearms used as described by the

victim. During the course of the search, the police discovered the firearms

in plain view and seized them. The defendant asked the California courts to

suppress the weapons, but they denied relief.

      In addressing the defendant’s challenge to the denial of suppression,

the Horton Court explained the prerequisites that must be met for the plain

view exception to the warrant requirement:

        It is, of course, an essential predicate to any valid
        warrantless seizure of incriminating evidence that the officer
        did not violate the Fourth Amendment in arriving at the
        place from which the evidence could be plainly viewed.
        There are, moreover, two additional conditions that must be
        satisfied to justify the warrantless seizure. [Next], not only
        must the item be in plain view; its incriminating character
        must also be “immediately apparent.” […Finally], not only
        must the officer be lawfully located in a place from which
        the object can be plainly seen, but he or she must also have
        a lawful right of access to the object itself.

Horton, 496 U.S. at 136-137 (citations and footnotes omitted).

      Relying upon Horton, this Court has described the plain view doctrine

as follows:



                                    -6-
J-S74025-13


         [t]he plain view doctrine provides that evidence in plain
         view of the police can be seized without a warrant,
         Coolidge v. New Hampshire, 403 U.S. 443 (1971), as
         modified by Horton v. California, 496 U.S. 128 (1990),
         and it was adopted by our Supreme Court in
         Commonwealth v. McCullum, 602 A.2d 313 (Pa. 1992).
         The plain view doctrine applies if 1) police did not violate
         the Fourth Amendment during the course of their arrival at
         the location where they viewed the item in question; 2) the
         item was not obscured and could be seen plainly from that
         location [and] the incriminating nature of the item was
         readily apparent; and [(3)] police had the lawful right to
         access the item.

Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012),

citing Commonwealth v. Sodomsky, 939 A.2d 363, 370 (Pa. Super.

2007).

      This Court’s en banc decision in Commonwealth v. Brown, 23 A.3d

544   (Pa.   Super.   2011),   which    involved   a   warrantless   seizure   of

incriminating, but not illegal, items is instructive to the case herein. Brown

robbed a gas station convenience store at gunpoint.         A police officer on

patrol witnessed Brown acting suspiciously before entering the store for one

minute and then fleeing on foot.       The police officer followed Brown in an

unmarked police car and witnessed him get into a maroon mini-van and

drive away. Police instituted a traffic stop and confirmed the robbery. An

officer saw what appeared to be a black handgun inside the mini-van on the

floor behind the driver’s seat. Brown fled and police apprehended him. The

police recovered the gun, which turned out to be a toy, and a black knit hat

Brown wore during the commission of the robbery as reported by the victim.


                                       -7-
J-S74025-13


Prior to trial, Brown filed a motion to suppress the evidence that was denied.

A jury subsequently convicted Brown. On appeal, an en banc panel of this

Court affirmed the denial of suppression and Brown’s judgment of sentence.

In discussing the plain view doctrine, the Brown Court determined that

“where police officers observe incriminating-looking contraband in plain view

in a vehicle from a lawful vantage point, the lack of advance notice and

opportunity to obtain a warrant provides the officers with a lawful right to

access to seize the object in question.” Brown, 23 A.3d at 557. Although

Brown dealt with the limited automobile exception3 to the warrant

requirement in determining lawful right to access by police, the decision

clearly established that the doctrine of plain view applies when police, from a

lawful vantage point, witness an incriminating item used during the

commission of a crime.

       Applying Horton and Brown to the instant matter, there can be no

dispute that the officers saw Appellant’s shaving kit from a lawful vantage

point and that the incriminating nature of the shaving kit was immediately

apparent to them.

       I begin with an examination of whether police were at a lawful vantage

point when they saw the shaving kit. This Court has previously determined:

____________________________________________


3
   Our Supreme Court has now rejected Pennsylvania’s limited automobile
exception in favor of the full automobile exception embraced by the federal
courts. See Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (plurality).



                                           -8-
J-S74025-13


        It is axiomatic that a search warrant is not needed when a
        person with the requisite authority unequivocally and
        specifically consents to a search. Whether an individual has
        voluntarily consented to a search is one of fact which must
        be determined in each case from the totality of the
        circumstances. The Commonwealth bears the burden of
        proving that a person consented to a warrantless search.

Commonwealth v. Rosas, 875 A.2d 341, 349 (Pa. Super. 2005) (citations

and quotations omitted). When police officers obtain the voluntary consent

of a third party who has the authority to give consent, they are not required

to obtain a search warrant based upon probable cause. Commonwealth v.

Hughes, 836 A.2d 893, 900 (Pa. 2003).

     Here, the record confirms that Ms. Smith was the lessee of the

apartment at issue.    N.T., 11/9/2011, at 47.      Therefore, she had the

requisite authority to consent to a warrantless search of the premises.

Moreover, Appellant does not challenge the voluntariness of Ms. Smith’s

consent; she clearly executed a written consent allowing police to conduct

the search.   Id. at 34-35.   Thus, when police saw the shaving kit in Ms.

Smith’s bedroom, they were at a lawful vantage point.

     Next, we must determine if the incriminating nature of the shaving kit

was immediately apparent.      “In determining whether the incriminating

nature of an object is immediately apparent to the police officer, we look to

the totality of the circumstances.” Commonwealth v. Turner, 982 A.2d 90,

92 (Pa. Super. 2009) (citations, quotations, and brackets omitted).

“Although courts have recognized that a police officer can never be certain


                                    -9-
J-S74025-13


that an object in plain view is incriminating, the officer's belief must be

supported by probable cause.” Commonwealth v. Whitlock, 69 A.3d 635,

637 (Pa. Super. 2013) citing Commonwealth v. Ellis, 662 A.2d 1043, 1049

(Pa. 1995). An item can possess or display an incriminating character for

purposes of the plain view doctrine even if it does not constitute contraband

per se. See Brown, 23 A.3d at 577.

        In this case, the police were aware of the following facts. Appellant

demanded money from the victim while brandishing a handgun protruding

from a leather, shaving kit bag.         Majority Opinion, at * 2.    The victim

witnessed Appellant take the bag into Ms. Smith’s apartment complex. Id.

Ms. Smith executed a written consent form allowing the police to search her

apartment. The consent form contained a list of the objects that the police

sought     to   recover,   including:        a   “handgun,    black   in   color,

ammunition/rounds, ammunition, magazines, any other accessory such

as a brown or black leather bag similar to a hygiene/shaving kit

bag.”    N.T., 11/9/2011, at 48 (emphasis added).         Moreover, Captain Paul

Jewell testified as follows at the suppression hearing:

          Q: After obtaining consent to search from M[s.] Smith,
          what do you do next, Captain?

          A: I entered the apartment.

          Q: And you just walk in?

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

                                        - 10 -
J-S74025-13



          Q: And what does that entail?

          A: 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.

          Q: And what was it – When you observed it, what did you
          immediately notice?

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

N.T., 11/9/2011, at 48 (emphasis added).

      The record confirms that Appellant used the shaving kit itself during

the commission of a crime. The victim described the shaving kit in detail to

police.   It was clearly one of the targets of the consensual search of Ms.

Smith’s apartment. Separate and apart from its contents, the shaving kit

itself linked Appellant to a gunpoint robbery and the police were aware of

this fact. The shaving kit was in the open, lying on the foot of the bed, and

not obscured. Appellant did nothing to preserve a privacy expectation in the

exterior of his shaving kit and the facts show that it was the incriminating

outward characteristics of Appellant’s shaving kit, not the incriminating

nature of its contents, which were immediately apparent to the officer who

lawfully entered Ms. Smith’s rear bedroom.      Thus, Appellant exposed his

shaving kit to the plain view of outsiders, including the victim and anyone

whom Ms. Smith allowed into her bedroom.        For these reasons, Appellant

cannot assert a reasonable expectation of privacy in his shaving kit (i.e., the

bag itself as opposed to its contents). It follows, then, that the seizure of



                                    - 11 -
J-S74025-13



the shaving kit (as a container) cannot offend the Fourth Amendment. See

Katz, 389 U.S. at 361 (Harlan, concurring) (“objects, activities, or

statements that [the defendant] exposes to the ‘plain view’ of outsiders are

not ‘protected’ because no intention to keep them to himself has been

exhibited); see also Horton, 496 U.S. at 141 n.11 (suggesting that where

an incriminating item in plain view is a container, police may permissibly

seize it because “even if the item is a container, its seizure does not

compromise the interest in preserving the privacy of its contents because it

may be opened pursuant to either a search warrant or one of the well-

delineated    exceptions    to   the     warrant   requirement.”);     see     also

Commonwealth v. Copenhefer, 587 A.2d 1353, 1356 (Pa. 1991) (“A

defendant's attempt to secrete evidence of a crime is not synonymous with a

legally cognizable expectation of privacy. A mere hope for secrecy is not a

legally   protected   expectation.”),     abrogated   on   other     grounds    by,

Commonwealth v. Rizzuto, 777 A.2d 1069 (Pa. 2001). Based upon all of

the foregoing, I believe that the police permissibly seized Appellant’s shaving

kit.

       My analysis cannot end here. The nature of the incriminating object in

this case – i.e. a container – coupled with the fact that the officer

effectuated a search of its contents compels me to proceed to Horton’s third

prong, which asks whether the police have a lawful right of access to the

challenged evidence.       As previously mentioned, Horton addresses the

situation in which a defendant seeks suppression of the contents of a

                                        - 12 -
J-S74025-13



container seized under the plain view doctrine. In relevant part, the Court

stated that “even if the item is a container, its seizure does not compromise

the interest in preserving the privacy of its contents because it may be

opened pursuant to either a search warrant or one of the well-delineated

exceptions to the warrant requirement.”            Horton, 496 U.S. at 141 n.11

(citations omitted).       As this quote indicates, and as the majority has

determined, Appellant retained an expectation of privacy in the contents of

his shaving kit that could only be overcome if the officers obtained a

warrant. Since this was not done, the search, as opposed to the seizure was

constitutionally infirm.

       Notwithstanding this determination, I believe that suppression is

unwarranted under the present circumstances. As I have explained above,

Appellant lacked an expectation of privacy in his shaving kit container.

Thus, while a search of the contents of the shaving kit may have been

improper, a seizure of the container was constitutionally justified.

Moreover, at the moment the officer seized the container, there was ample

evidence to establish probable cause4 in support of a warrant to search the
____________________________________________


4
  “[N]o warrant to search any place or to seize any person or things shall
issue without describing the item as nearly as may be, nor without probable
cause, supported by oath or affirmation subscribed by the affiant.” Pa.
Const. Art. I, § 8. “Probable cause [] is a practical, non-technical concept
which requires consideration of the totality of the circumstances.
Commonwealth v. Galvin, 985 A.2d 783, 796 (Pa. 2009). The issuing
authority “makes a practical, common-sense determination [], including the
veracity and basis of knowledge of the persons supplying hearsay
(Footnote Continued Next Page)


                                          - 13 -
J-S74025-13



contents of the shaving kit. Given the discrete constitutional transgression

that occurred in this case, I would hold that the doctrine of inevitable

discovery strongly supports affirmance of the trial court’s suppression order.

      In describing the doctrine of inevitable discovery, the United States

Supreme Court has opined, “[e]xclusion of physical evidence that would

inevitably have been discovered adds nothing to either the integrity or

fairness of a criminal trial.”       Nix v. Williams, 467 U.S. 431, 446 (1984).

This Court has concluded:

         Pennsylvania courts recognize the inevitable discovery
         doctrine first described by the United States Supreme Court
         in Nix v. Williams, 467 U.S. 431 (1984). That doctrine
         provides that evidence which would have been discovered
         was sufficiently purged of the original illegality to allow
         admission of the evidence. Implicit in this doctrine is the
         fact that the evidence would have been discovered despite
         the initial illegality. If the prosecution can establish by a
         preponderance of the evidence that the illegally obtained
         evidence ultimately or inevitably would have been
         discovered by lawful means, then the evidence is
         admissible. The purpose of the inevitable discovery rule is
         to block setting aside convictions that would have been
         obtained without police misconduct. Thus, evidence that
         ultimately or inevitably would have been recovered by
         lawful means should not be suppressed despite the fact that
         its actual recovery was accomplished through illegal actions.
         Suppressing evidence in such cases, where it ultimately or
         inevitably would have lawfully been recovered, would reject
         logic, experience, and common sense.



                       _______________________
(Footnote Continued)

information, there is a fair probability that contraband or evidence of a crime
will be found in a certain locale.” Id.



                                           - 14 -
J-S74025-13


       This exception to the exclusionary rule has been invoked on
       numerous occasions by Pennsylvania appellate courts as a
       basis for admitting evidence that was, or was claimed to
       have been, illegally obtained by the police or other
       government investigators. See, e.g., Commonwealth v.
       Van Winkle, 880 A.2d 1280, 1285 (Pa. Super. 2005)
       (holding that evidence obtained after officer exceeded
       permissible scope of weapons frisk was admissible because
       it fell within the inevitable discovery exception);
       Commonwealth v. Ingram, [814 A.2d 264, 270 (Pa.
       Super. 2002)] (deeming evidence obtained as a result of
       involuntary confession admissible because it inevitably
       would have been discovered); Commonwealth v. Miller,
       724 A.2d 895, 900 n. 5 (Pa. 1999) (citing Nix v. Williams,
       supra, and noting that even if the evidence found in the
       defendant's home had been illegally seized, it “would have
       been admissible because it inevitably would have been
       discovered”); Commonwealth v. Albrecht, 720 A.2d 693,
       702 n. 11 (Pa. 1998) (in claim decided under federal and
       state constitutions, holding that even if warrantless search
       of defendant's home had been improper, suppression not
       required because the evidence inevitably would have been
       discovered); Commonwealth v. Garcia, 661 A.2d 1388
       (Pa. 1995) (defendant not entitled to suppression of drugs
       in his pocket because they inevitably would have been
       discovered since police lawfully were permitted to search
       him incident to his arrest); Commonwealth v. Hoffman,
       [589 A.2d 737, 744 (Pa. Super. 1991)] (finding evidence
       recovered as a result of illegal search of defendant
       admissible because it would have been inevitably
       discovered); Commonwealth v. Speaks, 505 A.2d 310
       (Pa. Super. 1986) (evidence regarding discovery of
       marijuana in defendant's residence properly admitted under
       inevitable discovery rule).

Commonwealth v. Gonzalez, 979 A.2d 879, 890-891 (Pa. Super. 2009)

(some citations, all quotations, brackets, and ellipsis omitted).     The

Gonzalez Court determined that once police “had probable cause to arrest

[Gonzalez] and had facts supporting issuance of a warrant to search [his]




                                  - 15 -
J-S74025-13


apartment, […the police] inevitably would have discovered the other items of

contraband in [Gonzalez’s] room.” Id. at 891.

     The present case presents a textbook set of circumstances in which a

valid conviction is set aside based upon the exclusion of evidence that

inevitably would have been discovered.      Under the preponderance of the

evidence standard, I would conclude that the undisputed facts prove that the

evidence would have been inevitably discovered by police.       Here, based

upon the totality of the circumstances, the police arrested Appellant and had

probable cause to obtain a search warrant for Ms. Smith’s apartment, but

did not because Ms. Smith voluntarily gave consent.      The victim told the

police that Appellant robbed him and provided them a description of

Appellant, the weapon used in the commission of the crime, and the

container in which Appellant placed his firearm.   The victim also informed

the police that he witnessed Appellant go into the apartment building where

Ms. Smith lived and that he observed Appellant and Ms. Smith depart from

the scene. N.T., 11/9/2011, at 8-9, 13. The police detained Appellant at a

Sheetz gas station. Id. at 21. The police then transported the victim to the

Sheetz where he positively identified Appellant as the robber.     Id.   The

police arrested Appellant. Id.

     Moreover, police were in the process of obtaining a warrant to search

Ms. Smith’s residence, and items relating to the gunpoint robbery committed

by Appellant that may have been located therein including Appellant’s


                                   - 16 -
J-S74025-13


shaving kit.    N.T., 11/9/2011, at 35.        No warrant was obtained, however,

because Ms. Smith gave written permission for the officers to conduct a

search. Id. Ms. Smith’s written consent contained a list of the objects of

the    police    search,      including:        a   “handgun,   black   in   color,

ammunition/rounds, ammunition, magazines, any other accessory such as a

brown or black leather bag similar to a hygiene/shaving kit bag.” Id. at 48.

These descriptions were based upon what the victim told police. Id.          Thus,

at the time of the search, police knew the specific items they were looking

for and there was a fair probability that evidence of a crime would have been

found in Ms. Smith’s apartment.            Had the police applied for a warrant to

search the contents of Appellant’s shaving kit, they had overwhelming

evidence to support probable cause.5

       Finally, I must briefly address the learned majority’s reliance on

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

as that case is wholly distinguishable from the instant matter.                 In

Berkheimer, the search at issue was markedly different.            Therein, police

____________________________________________


5
   There is no concern in this case that we are dealing with the possibility
that the police “got the wrong man.”         The victim positively identified
Appellant as his armed robber. This identification rested upon unshakable
indicia of reliability: Appellant and the victim knew each other previously
since the two shared a prison cell together. Furthermore, as even the
majority acknowledges, Appellant admitted to possessing marijuana that he
stored in the same shaving kit bag that housed the firearm which he now
seeks to suppress. See Majority Opinion at *22, n.12.




                                           - 17 -
J-S74025-13


were attempting to execute a probation detainer for a man named Ryan

Lecroy. Acting on an unverifiable tip, the police believed that Lecroy could

be found at the Berkheimer’s home.         Police instituted a search at 11:30

p.m., under the dark of night, when the occupants appeared to be asleep.

Police knocked on the door, but before anyone could answer it, pushed the

door open and smelled burnt marijuana. The police entered the residence,

wherein they saw contraband and a firearm inside.           As my esteemed

colleague acknowledges, the police then secured a warrant to search the

residence based upon the items they observed during the illegal entry into

the home. Majority Opinion, at *18.

      In Berkheimer, this Court determined that “the independent source

rule precludes the issuance of a search warrant if the law enforcement

officers premised their application for the warrant, even in part, on

information they obtained during an unlawful entry of the premises to be

searched.” Berkheimer, 57 A.3d at 184, citing Murray v. United States,

487 U.S. 533, 534-535 (1988). We stated that “[l]aw enforcement may not

act willfully to avail itself of unlawful conduct of the expectation that the

more relaxed measure of inevitable discovery espoused in the Fourth

Amendment jurisprudence will somehow vindicate the right to privacy

enshrined in Article I, Section 8.”   Berkheimer, 57 A.3d at 188.      As the

United States Supreme Court made clear, a resulting search is infirm when

“the prosecution could not demonstrate that the agents would have sought


                                      - 18 -
J-S74025-13


a warrant had they not first entered” the property at issue.        Id., citing

Murray, 487 U.S. at 543 (emphasis supplied). Ultimately, in Berkheimer,

we determined that “the record in [that] case identifi[ed] no source

whatsoever unsullied by the taint of the illegality.” Berkheimer, 57 A.3d at

190 (original emphasis omitted). Thus, in sum, Berkheimer stands for the

proposition that police cannot conduct an illegal search first and then use the

information gained from that search to ratify their actions under the guise of

inevitable discovery.

      Here, based on the facts as presented to the suppression court, I have

no difficulty finding that not only could police have obtained a search

warrant, but they certainly would have. This is not the same situation we

were confronted with in Berkheimer.          There, police used information

gleaned from the illegal entry into and search of the Berkheimer’s home to

procure a search warrant for wholly unrelated crimes that they were not

originally investigating.   In this case, unlike in Berkheimer, police had

probable cause to believe that a firearm would be found at Ms. Smith’s

apartment at the time of the search.      Moreover, as noted multiple times

previously, police were in the process of applying for a search warrant based

upon the victim’s statements to them.         It was only after Ms. Smith

voluntarily consented to a search of her apartment that the police suspended

the search warrant application process. Under the facts of this case, had the

police applied for a search warrant, based upon the information known to


                                    - 19 -
J-S74025-13


them before entering Ms. Smith’s apartment, they unquestionably would

have succeeded in obtaining a warrant to search the shaving kit they

lawfully seized.

        In sum, I believe that the facts of this case do not warrant

suppression.6     The investigating officer properly seized Appellant’s shaving

kit under the plain view doctrine. As of that moment, the police had ample

grounds to establish probable cause for a warrant to search the contents of

Appellant’s shaving kit. Thus, while the warrantless search that ensued may

have been constitutionally infirm, I would hold that the contents of

Appellant’s shaving kit would inevitably have been discovered.        Hence, I

would affirm the denial of suppression and affirm Appellant’s judgment of

sentence. Accordingly, I respectfully note my dissent.




____________________________________________


6
  This Court may affirm the trial court’s decision on any basis. Gonzalez,
979 A.2d at 889, n.5. I admonish the Commonwealth for electing not to file
a brief in this matter, despite a grant by this Court for an extension of time
to do so. This difficult matter was made even more challenging without the
benefit of the Commonwealth’s advocacy.



                                          - 20 -
