J-A01036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

DAVID ALLEN HARRELL

                            Appellee                    No. 1891 EDA 2014


                 Appeal from the Order Entered June 17, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000559-2014


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 30, 2016

        The Commonwealth appeals the order entered in the Court of Common

Pleas of Delaware County granting David Allen Harrell’s motion to suppress.

The Commonwealth raises one issue for our review: Whether the trial court

erred in granting Harrell’s motion to suppress where the officer, who was

responding to a domestic violence report and arrested Harrell after

observing injuries to his girlfriend, searched Harrell’s bag without a warrant

based on his belief that the bag contained a weapon.1       After our review, we

affirm on the opinion authored by the Honorable Richard Cappelli.

        We begin by noting our well-settled standard of review:


____________________________________________


1
    Appellee Harrell has not filed a brief on appeal.


*Former Justice specially assigned to the Superior Court.
J-A01036-16




       When the Commonwealth appeals from a suppression order, this
       Court may consider only the evidence from the defendant’s
       witnesses together with the evidence of the prosecution that,
       when read in the context of the record as a whole, remains
       uncontradicted.       In our review, we are not bound by the
       suppression court's conclusions of law, and we must determine if
       the suppression court properly applied the law to the facts. We
       defer to the suppression court’s findings of fact because, as the
       finder of fact, it is the suppression court’s prerogative to pass on
       the credibility of the witnesses and the weight to be given to
       their testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)

(internal quotation marks and citations omitted).

       The suppression court issued findings of fact and conclusions of law.2

The court found that Corporal Jason McDevitt, after responding to a

domestic violence call, identified the victim, Tina Magaw, and defendant

Harrell. Harrell attempted to walk away, stating, “Let me just grab my stuff

and get out of here now.          I don’t want any trouble.”   N.T. Suppression

Hearing, 5/21/14, at 28. Harrell removed a black gym bag from a parked

SUV.    Corporal McDevitt arrested Harrell for simple assault, patted him

down, handcuffed him and placed him in the back of a police car. There was

____________________________________________


2
  See Pennsylvania Rule of Criminal Procedure 581(1) (“At the conclusion of
the hearing, the judge shall enter on the record a statement of findings of
fact and conclusions of law as to whether the evidence was obtained in
violation of the defendant’s rights, or in violation of these rules or any
statute, and shall make an order granting or denying the relief sought.”).




                                           -2-
J-A01036-16



no testimony that Harrell resisted or struggled; nor was there testimony that

Harrell made any sudden movements toward the bag. Officer Doyle arrived

as back up, and Corporate McDevitt searched Harrell’s gym bag. Inside the

bag, Corporal McDevitt found gym clothes, an ID card on a lanyard, and a

Pepsi “storage can.” The contents of the can were not discovered until the

can was seized and searched without a warrant.         See Findings of Fact,

6/17/14, ¶¶ 1-22, citing N.T. Suppression Hearing, supra at 23-55. Inside

the Pepsi can, Corporal McDevitt recovered 100 oxycodone pills contained in

ten separate bags, and 6 individual oxycodone pills.

      The Commonwealth argues that the warrantless search was proper as

it fell within the “search incident to arrest” exception to the warrant

requirement. We disagree.

      When asked why he did not obtain a search warrant if he believed the

can was a concealment device, Corporal McDevitt stated, “Like I said it was

a search incident to his arrest. It was on his person. He was arrested with

those belongings on him, and I was basically looking out for him and our

safety.”   N.T. Suppression Hearing, supra at 34-35.     As the suppression

court noted, it was reasonable for Corporal McDevitt to perform a pat-down

search in order to remove any weapons. The scope of a search incident to

arrest “extends not only to the arrestee’s person but also to the area within

the arrestee’s ‘immediate control.’”    See Conclusions of Law, 6/17/14, ¶¶

10-11. Here, the court concluded that the search exceeded the scope of a

pat-down search or search incident to arrest, and that no other exception to

                                       -3-
J-A01036-16



the warrant requirement applied.      There were no exigent circumstances,

there was nothing incriminating about the storage can that was immediately

apparent, and there was no stated inventory search policy.      Id. at 22-23.

After removing the bag from Harrell and placing him in handcuffs, Corporal

McDevitt removed any safety threat from the officers at the scene.      Id. at

50.

       In light of the foregoing, we discern no basis upon which to conclude

that   the   suppression   court's   findings   were   unreasonable.      See

Commonwealth v. Taylor, 771 A.2d 1261, 1265 (Pa. 2001).                We are

bound by the court’s findings, and we find no legal error in the court’s

conclusion that Corporal McDevitt’s search exceeded the scope of a lawful

search incident to arrest and that no other exception to the warrant

requirement is applicable. Therefore, we rely upon Judge Cappelli’s June 17,

2014 Findings of Fact and Conclusions of Law, as well as his October 24,

2014 Opinion, to affirm the order granting suppression.         We direct the

parties to attach copies of those opinions in the event of further proceedings.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2016


                                     -4-
                                                                                                              Circulated 03/18/2016 02:17 PM




                                                                                                                                .-
                                                                                                                               ...

                                                                                                                                     .,.~ .• I


                             IN THE COURT OF CO:MMON PLEAS OF DELA WARE COUNT){;.-"                                                   ·t-....
                                                                                                                                           :~
                                                                                                                                         _,.,
                                       COMMON\VEAL TH OF PENNSYLVANIA        \·~. :.-.:-:
                                              CRIMINAL DIVISION               ·. ··: ·. ·.                                                  ...~-.-~
                                                                                                                                             -~--      _;    ..

                                                                                                                       ··i''
             ,.
             (               Commonwealth of Pennsylvania                         NO. CP-23-CR-0000559-2014 ·
             ,'

                                              . v.

                                     David Allen Harrell


                                                                                                                                                            ..
                                                                OPINION
                                                                                                                                                            -
                                                                                                                                                            0

                 · CAPP.ELLI,       J.                                                         Date: October 24, 2014

         1

         !                 The Commonwealth, · hereinafter "Appellant", contends the trial court erred in
         i
         l
         l        granting the Defendant's Motion to Suppress Evidence. The trial court finds that the
         I        Suppression Hearing Testimony does not support the validity of the search of the "soda can

     -J
         l        container"!    inside the Defendant's gym bag and was beyond the scope of a permissible
         ~
     1
         j
                  search incident to arrest where the defendant was at all times under police control and
     ll           handcuffed : in the back of the police patrol car. Similarly, the Suppression Hearing
"j
     I
     1
                  Testimony failed to establish a departmentally mandated inventory policy such that the

     l            contents of the soda can container would have inevitably been discovered. Therefore, the

                  I
                    A soda can safe is a type of "diversion safe" or "stash safe" marketed as a safe and secure place to covertly

     I
     l
                  and inconspicuously hide valuables. This line of hidden-compartment-safes are designed, labeled and weighted
                  to evade detection due to their resemblance to ordinary household consumer products. The variety ·of diversion
                  safes range from surge protectors with a compartment to shaving cream cans, wall clocks and hardbound books

     I
     !
                  etc. See, www.TheHomeSecuritySuperstore.com/diversion-safes.
                  also, www.spyemporiurn.com/diversion-hidden-safes
                  www.grasscity.com.
                                                                                       ,w.•w.homedepot.com/diversion-safe.
                                                                           ; www.rollingpaperwarehouse.com/stash-safes;    or
                                                                                                                              See




     I                                                                   1
                   r
                        Appellant's contentions of error are meritless, The trial court's grant of suppression should


                  i·   -, be affirmed.

               !
               !
                        I. Procedural and Factual Background
              I



              I
              i
                       ,,
                       f
                                   The Commonwealth        appeals from this court's   June 16, 2014 Order granting

              I
               .       'Appellee's Motion to Suppress the contents of a closed soda can container inside his gym
              i.           bag at the time he was arrested for domestic assault.


              I
              I
                                   Appellee, David Harrell, was arrested on or about October 8, 2013 and charged with

                           Possession with Intentto Deliver, Possession of a Controlled Substance (oxycodone) and
              I
              l
              l
                           Simple Assault. Following a preliminary hearing all of the .above charges were bound over

              '
              l
                           and held for court.


              I!                   Appellee's counsel filed a Motion to Suppress on or about April 1, 2014. Thereafter,

                           the suppression hearing was then held on May 21, 2014. The only testimony provided by the
          I
          I
          1
          l
                           Commonwealth at the hearing was by Ridley Township Police Corporal Jason McDevitt. The

                           Appellee offered the testimony of Ms. Tina Magaw, the estranged mother of the Appellee's
    ·1
    . I
          il               children and the purported victim in the underlying domestic assault call.
          l
          '
                                   Prior ·to the commencement of Corporal McDevitt's ·testimony discussion between
      J.
      l
          l                Appellant's couns_el and counsel for the Appellee was placed on the record as to what

     II                     Appellee's counsel was seeking to suppress including the contents of a gym bag in the

      I                     Appellee's possession at the time of arrest as well as one hundred and six (106)" oxycodone
     l
     !l                     pills discovered as the result. of a search of a "Pepsi" container can inside the gym bag.
     i
     i                      Appellee did not challenge the propriety of the arrest.
     l
     i                             Ridley Township Police Corporal Jason McDevitt testified that on October 8, 2013, at
     r
     l
     l
w     i                     or about 4:05 p.m. he .was dispatched to 1307 Worrall Street, Crum Lynne, Pennsylvania
     ';                                                                     2
                190222       for an active domestic        assault call (Suppression Hearing Testimony 5121/14
       ~
                (hereinafter "SHT"), pp, 23-24). Corporal McDevitt is a thirteen (13) year veteran of the
       1
                Ridley Township Police Department, (SHT, p.13). He has been assigned to the Delaware


     II'
                .                            .                                                                      ,
           · . County Criminal Investigation Division ("CID") Narcotics Task Force for the past six '(6)

             years. (SHT,p.15). Corporal McDevitt explains that the CID task force is made up of several
                    f
                    I    .                            ..
             police officers from various departments conducting undercover narcotics investigations

            working with confidential informants, preparing search warrants and executing search
 '.l


 j           warrants, (SHT, p. 15, 12-19). By way of background, Corporal McDevitt testified that he


 !          has attended drug interdiction training seminars including the narcotics 'Top Gun" school

l1          wherein an entire day of training is specifically devoted to compartments used, inter alia, to


I
"i
l
            conceal drugs. (SHI', p. 16). Corporal McDevitt estimates he has personally made over five

J
            hundred (500) drug arrests (SHT, p.18) and he has been qualified as an expert in court as an

            -expe1t in illegal drug and narcotics trafficking. (SHT, pp. 18-19). Corporal McDevitt testified

            that prior to the date at issue he attended schools where he learned about soda can type

            containers used to conceal controlled substances. (SI-IT, pp. 21-22). When used in connection

            with the illegal drug trade these containers are used to hide money, illegal drngs and

            v-.'.eapons. (SHT,"jJ. 23). On arrival at the domestic assault call, Corporal McDevitt identified

            the purported domestic assault victim, Ms. Tina Magaw, on the steps of the residence located

            at 1 ?07 Worrall Street, Crum Lynne, Pennsylvania 19022 (SHT, p. 25). Corporal McDevitt

            concomitantly observed the Defendant, Mr. David Harrell, standing behind a large parked

            2
              Corporal McDevitt describes the area "it's one of our lower income areas of the township. It's known as 21
            District. That's the District I've been-patrolling for the last six years. It has been stated in court as well as other
            courts thatit is a high drug and high crime area". (SHT,p.24, 5-18). The area is also primarily residential with
            single family homes and apartment buildings. (SHT, p.25, 1-3).

                                                                       3
   SUV, variously leaning into an open back passenger door (SHT, pp. 25, 37-38). He observed

   Mr. Harrell yelling at Ms. Magaw from his position at the back of the SUV. (SHT, pp. 26-

   27). Corporal McDevitt approximates the distance from where the Defendant was standing

   to the front porch where Ms. Magaw was standing to     he   approximately ten (10') to fift~en
      t•
      I
   (15') feet (SHT, p. 37). Corporal McDevitt spoke to Ms. Magaw and he noticed her tom shirt

  and several red marks on her body with redness and swelling on her arm. He observed

  abrasions on her face. He testified Ms. Magaw's demeanor was emotional and crying. (SHT,

  p. 27, 10-19). Corporal McDevitt testified that a second responding officer, Officer Doyle,

  arrived a minute and a half to two minutes after his own arrival on the scene (SHT, p. 3 7). As

  Corporal McDevitt approached the Defendant, Mr. Harrell, the Defendant attempted to walk

  away saying "Let me just grab my stuff and get out of here now. I don't want any trouble.

  Let me just grab my· things and leave," at which time the Defendant removed a· black gym

  bag (de~cribed elsewhere as a two-strap backpack type gym bag, see SHT, p. 48: 5-12) from

  the back seat of the SUV vehicle and put it over. his shoulder (SHT, p. 28-29). At that point,

  Corporal McDevitt grabbed the Defendant by the mm, removed the gym bag, informed the

  Defendant
   .
            he was. under arrest and walked him to the police patrol car: (SHT, pp. 28, 18-24,

  48: 13-18). At the patrol car, Corporal McDevitt performed a "pat-down" search of Mr.

  Harrell. He searched for weapons and placed him into the back of the police car after

  removing a wallet and some money and placing him in handcuffs. (SHT, pp. 28, 13-17) .

. . There was no testimony that Mr. Harrell resisted in any way (SHT, p. 50). On taking the

  Defendant into custody and after securing the defendant in the back of the police patrol car,

  Corporal McDevitt having previously removed the gym bag (SHT, pp.49: 22-25, 50: 1-4)

  performed a warrantless search of its contents (SHT, pp. 50-51). Present for this warrantless
                                                4



                      ·'
                 ,/   1~/
           .,,
     search was the assisting officer, Officer Doyle (SHT, p. 51). Besides gym clothes, Corporal

     McDevitt found an ASP expandable/collapsible metal baton and storage container shaped

     and labeled like a Pepsi soda can (SHT, p. 31) as well as the Defendant's identification card

     on a lanyard (SHT, p. 34:2-6). There was no testimony that the Defendant struggled, fought,
     ,.
     $r threatened Corporal McDevitt. Further, there was no testimony the Defendant made any

     sharp or sudden movements to retrieve any weapon from the gym bag in an effort to threaten

     Corporal McDevitt or flee (SHT, p. 49). Corporal McDevitt testified to probable cause to

     arrest the Defendant 'for domestic assault and subject him -to a search incident to arrest (SHT,

     p. 35). Beyond the probable cause for the domestic assault arrest, Corporal McDevitt did not ·
                                               )                                             ,
     expressly articulate suspicion or concern for any contemporaneous illegal activity (SHT, pp.

I
t
     J 3-67). Corporal McDevitt testified he was unaware of the contents of the Pepsi storage can
i
I
:\
     (SHT, pp. 32-33). The fact that the Pepsi storage can concealed an illegal controlled
.,

     substance was neither readily nor immediately apparent to Corporal McDevitt (SHT, pp. 32-

\.   33). Corporal McDevitt testified that the Pepsi soda can style container that he discovered in     I
                                                                                                        I


                                                                                                        I
     the gym bag is sold legally (SHT, pp. 54-J5). Corporal Mclrevittconceded the Pepsi storage
                                                                                                        !'
     can itself
          .   .   ~- is .-n~t)ncriminating.
                        .       ..
                             .-,-~
                                              The. illegal contents of the Pepsi storage can were not

     discovered until after the can was seized and opened (searched) without a warrant (SHT, p.

     33;. There was no. weapon inside the container. Instead, inside the compartment there were

     ten (10) bundles or packages of ten (I 0) oxycodone p_ills plus six (6) individual oxycodone

     pills. (SHT, p. 33, 19-25).

                  When asked directly why he did not obtain a search warrant to search the Pepsi can

     that he believed to be· some kind of concealment device, Corporal McDevitt replied, "Like I

     said it was a search incident to his arrest. It was onhis person. He was arrested with those
                                                         5
 belongings on him, and I was basically looking out for him and our safety. I was looking out

 to make sure that there was no money or valuables in (here) that needed to be returned to the

 prisoner. Like I said the money we give directly to them in the cell to avoid any type of, HRe

 you said 'liability to the police department, as well as any type of valuables ·that needed to be
     r
 logged to be returned to the prisoner at a later date." Thereafter, when specifically asked "and

 also a weapon" he replied, "and a weapon." (SHT, pp.34:25, 35: 1-12). When asked why, he

 replied, "Just for like I said safety reasons, you don't want to have a weapon brought into a

 cell block." (SHT, p.35:15-18). In testifying about the search of the gym bag, Corporal

McDevitt testified that he first noticed a pair of gloves and gym stuff and a baton. (SHT,
                                                                                      ,.
p.51: 10-15). He said he likely placed the baton on the seat of his patrol car after removing it

from the gym bag. (SHT, p. 51: 15-19). When asked if an inventory was performed, Corporal .

McDevitt testified "no, the only inventory that was done of the stuff that wasn't returned to

Mr. Harrell." (SHT, p. 52: 8-15). With respect to the search of the Pepsi container can, he

testified the can was sealed albeit with a loose lid that didn't sit evenly. (SHT, p. 52: 17-22).

Once Corporal McDevitt discovered the can didn't contain any weapon but instead found

pills he re-sealed the container and placed it on the seat of his patrol car and drove to the

station. (SHT, p. 55: 5-24). Corporal McDevitt said if he didn't search the can it was going to

be left out on a table (at the station) where numerous other prisoners can encounter it (the

soda can), if it is not seized as evidence (the soda can) and is left out on a table where other

prisoners walk in and can encounter those items. (SHI', p. 64: 4-18). Corporal McDevitt next

testifies that because it is legal to own the Pepsi can container, if he didn't look in it, he.

would have just left it for the defendant. (SHT, p. 65.·1-15). Ultimately, he testified as to

whether he would simply leave the Pepsi container can out on a table at the police station that
                                               6
   "no, it would never be left there before I looked in it. I would look in it first because I know

  what kind of can it is. I know that money can be placed in there. I know that drugs can be

  placed in there, weapons; so therefore, I would look in the can first before placing (It) where',

  the prisoners come in and out." (SHT, p. 69:4-22). There was no testimony elicited from
        e
        I                .
  Corporal McDevitt regarding any routine universally mandated departmental inventory

  policies and procedures adopted by the Ridley Township Police Department such that the·

  contents of the can would have arguably been inevitably discovered. (SHT pp.13-67). Tina

  Magaw, the purported domestic assault victim, was called to testify by the Defendant. (SHT,

  JJp. 70-90). Ms. Magaw testified that she and the Defendant resided together at 1307 Worrell
                                                                                           ,
  Street Crum Lynne, Pennsylvania. (SHT, p. 71: 1-15).            Ms. Magaw testified that the·

  defendant was inside the house and she was on the porch when police arrived in response to

 ., her domestic assault call. (SHT, pp. 72-74). She testified the Defendant asked to leave and

  exited the residence on arrival of the po1ice and that he was arrested outside the residence.

 ,, (SHT, p. 74). She said the defendant was not holding the gym bag at the time of the arrest.

  (SH'I'i p.74:11-13). She said she was questioned by Corporal .McDevitt regarding what car

  the J?efendant was .driving (SHT, pp. 74-75). After she indicated the SUV vehicle, she

  testified the SUV was searched and the gym bag was removed from the back seat of the SUV

  while the Defendant was handcuffed in the back of the police car. (SHT, p. 75: 9-18). She

  testified she could view the search of the gym bag as the search was conducted by Corporal

  McDevitt directly in front of her and described the bag as having two (2} draw strings. (SHT,

  p. 76: 19-22). She was asked if she was aware of the contents of the Pepsi can container and

  she denied knowledge of the pills. (SHT, p. 77:3-14). Thereafter she contends she left the

·· scene to go to the police department to be photographed. (SHT, p. 77: 10-14). Ms. Magaw
                                                  7
 testified she lives with the Defendant and they have four (4) children together. (SHT, pp. 77-

 79). Ms. Magaw testified that the four children stay with the Defendant while she works

 approximately 75 hours per week as a nursing assistant. (SHT, pp. 86-88).

            Absent any request from the Commonwealth         to supplement the record, the
      -.
underfigned made its decision on the Motion to Suppress by Order of June 16, 2014 granting

suppression and pursuant to Pa.R.Crim.P. 581 (I), Findings of Fact and Conclusions of Law

were made.

II. Issues

           In its notice of appeal, the Commonwealth states that the order will terminate or

substantially handicap prosecution. In its concise statement the Commonwealth sets forth two

issues for appellate review. First, the trial court erred in ruling the evidence seized from the

Defendant was not obtained during a lawful search incident to arrest and next, that the trial

court erred in ruling, that the unlawfully seized evidence would have inevitably been

discovered in a lawful inventory search,

III. Discussion
                                                                                                .
           Where a motion to suppress has been filed, the burden is on the Commonwealth to

· establish by a preponderance of the evidence that the challenged evidence is admissible,

Comnfomvealtlt v. Powell. 994 A.2d 1096, JI 01 (Pa.Super. 201 OJ, citing Pa.R.Crim.P. 323

(h); Commomvealth v. lamzaccio, 480 A.2d 966 (Pa. 1984). When reviewing a decision

from the suppression court, the appellate court (1) determines whether the record supports the

factual findings of the suppression court below, and (2) evaluates the legitimacy of the

inferences and legal conclusions drawn from those findings. Commouwealtlt v. Bull, 555

A.2d J 341 (Pa. Super. 1989). Where the Commonwealth challenges the decision of the
                                               8 .



                                                                                           e'
                          ,.
                  /       1•.1
           ;fj'       »
suppression          court, the. appellate court considers only the evidence   of the defendant's

witnesses and so much of the evidence for the prosecution which when read in the context of.

the record as a whole, remains uncontradicted.         Commonwealth v. Hamlin, 469 4.2d 131~

139 (l;_a. 1983). The appellate court is bound by the suppression court's fmdings if they are
      f.

supported by the record, and may only reverse the suppression court if the legal conclusions

drawn from the findings are in error. Commonwealth v. James, 486 A.2d 376, 379 (Pa.

1985).

           The appellate standard of review in. addressing a challenge to an order granting

suppression of evidence is well-settled: "The suppression court's findings of fact bind an

appellate court if the record supports those findings. The suppression court's conclusions of

law, however, are not binding on an appellate court, whose duty is to determine if the

suppression court properly applied the law to the facts." Commonwealtlt v. C!ternoskv. 874
                             ~
A.2d 123, 124 (Pa. Super. 2005).

           At a hearing 'on suppression, "It is within the suppression court's sole province as

factfinder to pass on the credibility of witnesses and the weight to be given to their

testimony. The suppression          court is free to believe all, some, or none of the evidence
     -                    .
presented at the suppression hearing." Commouwealth v. Efmobdl', 823 A. 2d 180, 183 (Pa.

Super. Ct. 2003); Commonweaftlt v. Joues, 845 A.2d 821, 824-25 (Pa. Super. Ct.. 2004);

Commouwealtlt v. Acosta. 815 A.2d 1078, 1082 & 11. 2 (Pa. Super. Ct. 2003) (en bane); see

also, e.g., Commonwealth v. Torres. 564 Pa. 86, 95, 764 A.2d 532, 536-37 (2001);

Commouwealtft 11. Pickron, 535 Pa. 241, 246, 634 A.2d 1093, 1096 (1993); Commonwealth

v.DeWitt, 530 Pa. at 302, 608 A.2d at 1031;Commomvealtlt v. AfcClease. 750 A.2d 320,


                                                   9


                                                                                           •
                r'
                     -·J~/
           ,•
  ~23-24 (2000); cf. Commonwealth v. Millner, 585 Pa.237 at 246, 888 A. 2d at 685 (restating

  the, "well-settled" standard of appellate review of rulings on suppression).

            The American law of search and ~eizure is embodied in a single sentence injhe

  Fourth Amendment to the U.S. Constitution, which provides: The right of the people to be
     •''
  secure in their persons, houses, papers, and effects, against unreasonable searches and

  seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,

  supported by oath or affirmation, and particularly describing the place to be searched, and the

  persons or things to be seized ; (JS. Const. amend. IV; see also US. Const. amend. XIV, § 2

  {providing that no State shall "deprive any person of Life, liberty, or property, without due
                                                                                                      '
 process of law; nor deny to any person within its jurisdiction the equal protection of the

 laws").

           A provision.of Pennsylvania's Constitution provides, in similar terms, independent,

 and at times greater, protections to persons within the Commonwealth: The people shall be

 secure in their persons, houses, papers and possessions · from unreasonable searches and
                                                            ·.•·':"J-


,.. seizures, and no warrant to search any place or to seize any person or things shalJ issue                  ., -,

 without describing them as nearly as may be, nor without probable cause, supported by oath

 or. affirmation subscribed to by the affiant. Pa. Const. ·art. 1, § 8.

           Warrantless searches or seizures are presumptively unreasonable subject to certain

 established            exceptions.   Commomvea{I!,   l'.      Bostick,   64 A.2d   543, (Pa.Super.   2008);

 Commomvealtlz v. Burgos, 64 A.3d 641, 648 (Pa.Super. 2013) ("Warrantless searches and·

 seizures are unreasonable per se, unless conducted pursuant to a specifically established and

 well-delineated exception to the warrant requirement.");                 Commouwealt!t v. Caba11, 60 A. 3d

 120, 127 (Pa.Super. 20f2) (a search conducted without a warrant is constitutionally
                                                            10



                 ..
               ... ll
  impermissible unless an established exception applies). As a general rule, Pennsylvania
            '
 courts hold that a search warrant is required before police may conduct any search and
                                                                                                                      ....
 without the applicability of the outlined exceptions, a warrantless search is presumptively                                 '

 unreasonable. Commomvealtlz v. Wltitlock, 69 A.3d 635, 637 (Pa.Super.                            2013); see also
                I                                               •

 Commonwealtl,                v. Wlrite, 543 Pa. 45, 669 A.2d 896, 9QO (1995); Commomvealtl,                     v.

 McCree, 592 Pa. 238, 247, 924 A.2d 621, 627 (2007).

            To have standing to assert a violation of this constitutional right to be free of unlawful

 search and seizure, the subject of the search must establish a constitutionally                         protected

 privacy interest in the area to be searched. Commouwealtlt                   11.   A1illuer, 585 Pa. 237, 256-57,

 888 A.2d 680, 692 (2005). An expectation of privacy will be found to exist when. the

 individual exhibits an actual or subjective expectation of privacy and that expectation is one

 -that society        is    preparedto recognize as reasonable. Commonwealth                v. Whiting, 767 A.2d

 .]083, Super. 2001, appeal denied 796 A.2d 982, 586 Pa. 699. In determining whether a

-person's expectation of privacy is legitimate or reasonable, the totality of the circumstances
        '                                         .
 must be considered and the determination will ultimately rest upon a balancing of the societal

 interests involved.             'the constitutional   legitimacy      of an expectation       of privacy is not

 dependent          011    the subjective intent of the individual asserting the right but on whether the

 expectation is reasonable in light of all the surrounding circumstances .. Commomvealth v.

 Viall, 890 A.2d 419, 422" (Pa. Super. 2005).

            The Pennsylvania Supreme Court has long recognized                         that an individual has an

 expectation of privacy in his or her personal                      belongings from warrantless searches and

· seizures. Commonwealth v. Dowds, 761 A.2d 1125, 563 Pa. 377 (2000). Commouwealt!t v.

 Timko, 491 Pa. '32, 417 A.2d 620 (1980) ("absent exigent circumstances,                             a warrantless
                                                           11
search of luggage or other personal property, in which a per~on has a reasonable expectation

of privacy is not permissible'}

             Generally under Pennsylvania Jaw, courts hold that a search warrant is' required.

before police may conduct any search and without the applicability of the outlined
     I

exceptions, a warrantless search is presumptively unreasonable. Commonwealtlt v. Whitlock

.69 A.3d 635, 637 (Pa. Sup. 2013) (see also Co1m11~11wealtl1 v. White, 543 Pa. 45,· 669 A.2d

896, 900 (1995); Commonwealtl1                v. A1cCree, 592 Pa. 238, 924 A.2d 621, 627 (2007);·

Commomvealth v. Jones, 605 Pa. 188, 988 A.2d 649, 656 (2010)).

             A police officer may
                                .
                                  search the arrestee's person and the area in which the person is   .
detained in order to prevent the arrestee from obtaining weapons or destroying evidence, but

otherwise, absent an exigency, the arrestee's privacy interests remain intact as against a

warrantless search.          fri   short, there is no justifiable search incident to arrest under the

Pennsylvania Constitution save for the search of the person and the immediate area which the

person occupies during his custody. Commouwealtft v. White, 543 Pa. at 57, 669 A.2d at 902

(1995).

             The Pennsylvania constitution authorizes limited search for weapons when an officer

has reasonable and articulable suspicion that a suspect may. have access. to a weapon.

Commonwealth v . .!VfoITis, 53 7 Pa. 417, 644 A.2d 721 ( 1994 ). The scope of a search incident

to arrest "extends not only to the arrestee's person but also into the area within the arrestee's

"immediate control". Commouwealtft v. Tal'lor, 565 Pa. 140, 158, 771 A.2d 1261,                12.71 (Pa.

2001 ). The two-part rationale          for the search incident   to arrest exception are (l) the need to

disarm an arrestee for safety purposes and (2) the need to preserve evidence. Id.


                                                       12


                 '
                     ..,'l
             r        .'
     .r···
               A search incident to arrest complies with the Fourth Amendment when it is confined

  to, and controlled by, the circumstances                      warranting the intrusion. U.S.   11•   AfJ!ers,308 F3d

  251, 266-267 (3d Cir. 2002).

               Tqe possibility that a search made simultaneously                with an an-est may uncover some
                       I
           \
  hidden evidence is not sufficient to permit such a search. Tavlor, 565 Pa -. at 158-59, 771

  A.2d at 1272-73. Mere suspicion is not enough to justify a search when an officer has seen

  others use an object to _package drugs. Com111011wealtll v. Stevenson, 560 Pa. 345, 358-59,

  744 A.2d 1261, 1268 (2000).

               Evidence obtained in violation of a criminal suspect's constitutional rights to be free

  from unreasonable search and seizure is subject to suppression under the exclusionary rule.

  "The exclusion of unconstitutionally obtained evidence is not a constitutional right,

  but a constitutional remedy."
                           .
                                Commomvealtl, v. Edmunds,
                                                  .
                                                          526 Pa. at 395 n. /0, 586 A.2d at

 898.

               Accordingly,           this court concludes that Corporal Mclzevitt's         search of the Pepsi

 container can exceeded the constitutionally permissible scope of a search incident to a valid

 arrest where the Defendant was handcuffed, patted-down, seated· in the back of a police
. . . ·-- ~-~~- -- ~~- .. - ·. . ·. -~~:'~-~1~
 patrol car and the Corporal had assumed complete control of the gym bag in which the Pepsi

 container can was discovered. Also, the gravamen of the Corporal's testimony was that the
                                         ,
 search was a more generalized search for valuables, money, drugs and also weapons verses a

 more exigent concern for-police protection. Another fact that informs the court's conclusion

 is that Corporal McDevitt was comfortable with his own security and the security of the

 Defendant and the other responding Officer Doyle that he laid the expandable baton, an

 actual weapon, on the seat next to him as he seized and searched the Pepsi container can.
                                                                  13
                                             l ..   ..   ..,•




                             ..~~r
                _,,'   '
     Ihis indicates that the Defendant was plainly secure and there was no material risk to the

     :::orporal or the other officer. The Corporal would not leave a weapon where the Defendant

    could access it.' Further, Corporal McDevitt testified the Pepsi container can was in poor

    condition but-that itself was neither illegally sold nor illegal to possess. In Commonwealth v.
                    I

    TaJ>lor, 565 Pa: 140, 158, 771 A.2d 1261, 1271 (Pa. 2001) the Pennsylvania Supreme Court

    explained that the scope of a proper search incident to. arrest extends only to the arrestee's

    person and those things within the arrestee's immediate control.                M The Court held in Tai,tor
    chat the search of two coats exceeded the proper scope of a search incident to a valid arrest

    because it was not performed in furtherance of either police protection or evidence

    preservation.

            Lastly, the Commonwealth's alternative claim of error by the trial court's suppression

of the pills found in the· Pepsi container can, is that the pills would have inevitably been

discovered. This theory too must fail. Although an administrative inventory search is a

recognized exception to the warrant requirement where the pills would have "inevitably been

discovered" pursuant to a properly conducted inventory search during the Defendant's

booking process after he had been arrested at the police station, see Commonweaftit •'·

Knoche, 451 Pa.Super. 54,59, ·678 A.2d 395, 397(Pa.Super. 1996), Commonwealth v. Zook,

532 Pa. 79, 91, 615 A.2d I, 7 (Pa. 1992).                        Corporal McDevitt expressly testified his

justification for search and seizure of the container was a search incident to arrest.

Additionally, no testimony was elicited for Corporal McDevitt regarding any departmental


3
    The front and back of a police patrol car is typically divided by a secure partition




                                                            14
inventory policy such that the pills would have been inevitably discovered from some source

independent of the illegal search and seizure of the Pepsi container can.

       Therefore, the claim that the pills would have inevitably been discovered and thy trial       .»


court erred in suppressing the pi11s must also fail on grounds the record is devoid of any
         f                            .                                       .                  .
         I
sufficient testimonial foundation to infer any established inventory policy that would have

separately and independently led inevitably to the discovery of the pills.

IV. Conclusion

        Wherefore, for all the foregoing reasons, the trial court's Order of June 16, 2014

should be affirmed.

                                          BY THE COURT:




                                                15
                                                                                   Circulated 03/18/2016 02:17 PM




  IN THE"C()URT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                                                 CRIMINAL


 Commonwealth of Pennsylvania                                                                ..•
                                                                          DELAWARE COUNTY
                      v.
 David Allen Hanel!                                                       CP-23-CR-0000559~2014


                                                   ORDER

               AND NOW, too wit, this 16<1, day of June 2014, upon considerationof the "Defendant's

 Motion to Suppress Physical Evidence," filed in the above matter, after a hearing on May 21,

· 2014 and having considered the memoranda submitted by counsel, it is hereby ORDERED and

 DECREED that said motion is GRANTED.

               FURTHER, in support of the foregoing the court hereby sets forth the following

 Findings of Fact and Conclusions of Law:

                                              I. Findings of Fact

  1.           On October 8, 2013~ at or about 4:05 p.m., Corporal Jason Mcfrevitt of the Ridley

 Township Police Department was dispatched to 1307 Worrall Street, Crum Lynne Pennsylvania

· for an active physical domestic assault call (N.T. 5/21/14, pp. 23-24);

 2.            Corporal McDevittt is a 13 year veteran of the Ridley Township Police Department.

 (N.T. 5/21/14; p. 1;3); Currently Corporal McDevitt has been assigned to the Delaware County

. Criminal Invesetigation Division Narcotics Task Force for the past six years, (N,T. 5/21/14

 p.i5)~

 3.            Corporal McDevitt has undergone drug interdiction training seminars including "Top

 Gun" school including an entire day of training specifically devoted to compartments used> inter

 alia, to· conceal drugs and other indicia of illegal drug activity (N.T. 5/21/14, 1).16);




                                                                                        .
       ..
       '.~..
                                                                                 (
                                       (


     4.          Corporal McJ?evitt testified that prior to the Harrell arrest he attended schools where he

     l~arned about soda can type containers used to conceal controlled substances and other indicia of
      .'\


     drug related activity. (N.T. 5/21/14 pp. 21-22);                                                    ...
     5.          On arrival Corporal McDevitt identified the alleged victim, Ms. Tina Magaw, on the
            e,

     st~ps of the residence located there (N.T. 5/21/14, p. 25);

     6. .        At the same time Corporal McDevitt identified the Defendant, Mr. David Harrell,

     standing behind a large parked SUV, variously leaning into an open back passenger door (N.T.

     5/21/14, pp. 25, 37-38);

     7.          Corporal McDevitt testified that a second responding officer, Officer Doyle, arrived a

     minute and a half to two minutes after his own arrival on the scene (N.T. 5/21/14, p. 37);
I·
     8.          As Corporal McDevittapproached the Defendant, Mr. Harrell, the Defendant attempted
I    to walk away saying "Let me just grab my stuff and get out of here now. I don't want any

     trouble. Let me just' ~grab my things and leave", at whlch. time the
                                                                        .
                                                                          Defendant removed a black

     gym bag from the vehicle and put it over his shoulder (N.T. 5/21/14, p. 2~);

     9.          As the Defendant attempted to walk away, Corporal McDevitt, acting ou probable cause

     fol' the physical domestic assault, arrested Mr. Harrell (N.T. 5/2 l/t4, p. 28);

     10.         The Defendant, Mr. Harrell, was then patted down, handcuffed, and placed in the back of

     a police car. There was no testimony that Mr, Harrell resisted in any way (N.T. 5/21/14, p. 50);

     11.         On.taking the Defendant into custody and after seeming the defendant in the back of the

     police squad car, Corporal McDevitt took control of the bag and performed a warrantless search

     ofits contents (N.T. 5/21/14, pp. 50-51);

     12.         Present for this warrantless search was the assisting officer, Officer Doyle (N.T. 5/21/14,

     p. 51);




                                                                                                     •
                                                                                                  (
                                                        (


       13.                        Besides gym clothes, Corporal McDevitt found an ASP expandable metal baton and

       storage container shaped and labeled like a Pepsi can (N.T. 5/21/14, p. 31);
           .·,
       14.     There was no testimony that the Defendant struggled, fought, or threatened Corporal
                                                                                                                   >           ,.,..

       McDevitt. Further, there was no testimony the Defendant made any sharp or sudden movements ·
                   ,.
      10 rejl'ieve any weapon from the gym bag in an effort to threaten Corporal McDevitt or ~ee (N.T.

       5/21/14, p. 49);

       15.                        Corporal McDevitt testified to probable cause to arrest the Defendant for physical

       domestic assault and subject him to a search incident to arrest (N.T. 5/21/14, p. 35);

       16.                        Tl~ere was no material threat to police safety after the Defendant, Mr. Harrell, was placed

       in handcuffs and secured in the back of the police car (N.T. 5/21/14, p. 50);

       17.                        In removing the bag from Defendant's possession and placing the Defendant in handcuffs

      in the back of the patrol car, Corporal McDevitt diminished any material safety threat to the

       officers at the scene                   'tN,T. 5/21/14, p. 50);   .

       18.                    Beyond probable cause for the physical domestic assault arrest, Corporal McDevitt did

      not articulate any indicia of a concern for illegal activity (N.T. 5/21/14, pp. 13-67);

       19.                        Corporal McDevitt testified he was unaware of the contents of the Pepsi storage can

       (N.T. 5/21114,p~. 32-33);

       20.                   · TI1e fact that the Pepsi storage can concealed an illegal controlled substance was neither

r.>   ~_teadily nor immediately apparent to Corporal McDevitt (N.T. 5/21/14, pp. 32-33);
 ";"I~-•'-




       21.                        Corporal Mclrevitt testified that the Pepsi soda can style container that he discovered in

       the gymbag are sold legally (N.T. 5/21/14, pp. 54-55);




                   ,/                ",~/
             ,{"        ,•   ,·
                               (


22.     TI1e Pepsi sto rage can itself is not incriminating. The illegal contents of the Pepsi storage

can were not discovered until after the can was seized and searched without a warrant (N.T.

5/21/14, p. 33);

23.    Additionally, there w~s no testimony by Corporal McDevitt regarding any routine

\1niversally mandated departmental inventory policies and procedures mandated by the Ridley

Township Police Department such that the contents of the can would have arguably been

inevitably discovered.

                                       IT. Conclusions of Law

1.     On a motion for suppression of evidence alleged        to have been obtained   in violation of au

accused's rights, "the Commonwealth shall have the burden of going forward with the evidence

alleged to have been and of establishing that the challenged evidence was not obtained in

violation of the defendant's rights." Pa.R.Crim.P. 58l(H); Commonwealth v. Galendez, 27 A.3d
                   -.
1042, 1046 (Pa.Super. 201 l)(en bane). "In all cases, the burden of production is now upon the

Commonwealth." See Commonwealth ex rel. Butlel'v Rundle, 429 Pa. 141, 239 A.2d 426
                                                 -.,~. •+
                                             .   -·-   ....
(1968). The burden of persuasion is there.as well," Pa.R.Crim.P. 581 cmt, (citing Miranda v

Arizona, 384 U.S. 436, 479 (1966)). When considering a motion for suppression of evidence, a

preponderance of evidence is the burden of proof. "Butler establishes a preponderance of the

evidence as the standard of proof," Pa.R'Crim.P, 581 cmt. "It is within the suppression court's

sole province as the fact finder to pass on the credibility of witnesses and the weight to be given

to their testimony. The suppression court is free to believe all} some, or none of the evidence

presented at the suppression hearing," Commonwealth v Ehnodbdy, 823 A.2d 180, 183

(Pa.Super, 2003) ( citation omitted), quoted in Galendez> 27 A.Jd at 1046.

          -.                                                                          . .,.••.~    ....   • ;!".••




               .,
               ,'(
               ·.:
                                                                                        (




              2.         The Fourth Amendment to the United States Constitution provides protection to "the

~· -t.
         . right of the people to be secure in their persons, houses, papers and effects, against unreasonable

              searches and seizures].]" U.S. Const. Amend. N. Pennsylvania provides enhanced protections               -··

          from unreasonable
                ~
                            searches and seizures under Article I, Section 8 of the . Pennsylvania
                         .,.
              Constitution. Commonwealth v. Miller, ·56 A.3d 424, 429 (Pa.Super. 2012). ·

              3. -       Warrrantless searches or seizures are presumptively unreasonable subject to certain

          established exceptions. Id. (citation omitted); se~_a!~o Conimonwealth v. Bostick, 64 A.2<l 543,

              (Pa.Super, 2008); Commonwealth v. Bmgos, 64 A.3d 641, 648 (Pa.Super. 2013) C'Warrantless

          searches and seizures are unreasonable per se, unless conducted.pursuant to a specifically

          established and well-delineated exception to the warrant requirement."); Commonwealth v.

          Caban, 60 A.3d 120, 127 (Pa.Super, 2012) (a search conducted without a warrant is

          constitutionally impermissible unless an established exception applies).

          4.             As a general rule, Pennsylvania·courts hold that a search.warrant is required before police

          may conduct any search and without the applicability of the outlined exceptions, a warrantless

         · search is presumptively unreasonable. Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa.Super.
                     '
          2013); see also Commonwealth v. White, 543 Pa. 45, 669 A.2d 896, 900 (1995); Commonwealth

          ·v. McCree, 592 Pa. 238, 247, 924 A.2d 621, 627 (2007).

          5.             1he Pennsylvania Supreme Court has long recognized that an individual has an

          expectation of privacy in his or her personal belongings from warrantless searches and seizures.

          See Commonwealth v. Timko, 491 Pa. 32, 37-38, 417 A.2d 620, 623 (1980) ("Absent exigent

          circumstances, a warrantless search of luggage or other personal property, in which a person has

          a reasonable. expectation of privacy is not permissible,").




                                        .,.
                                    (   .•'/
                               ,/
         <·               .·'
                                                                                (



6.              A police officer may search the arrestee's person and the area in which the person is

detained in order         to prevent the arrestee from obtaining weapons or destroying evidence, but
     .'\


otherwise, absent an exigency, the arrestee's privacy interests remain intact as against a
                                                                                                          ...•
wairantless search, In short, there is no justifiable search incident to arrest under the
           -,
Pennsylvania
    I
             Constitution save for the search of the person and the immediate area which the
                                                                                          .

person occupies during his custody, as stated above. White, 543 Pa. at 57, 669 A.2d at 902

(1995) (internal citations omitted).

7.              The Pennsylvania Supreme Court has long recognizedthat an individual has an

expectation of privacy in his or her personal belongings from warrantless searches and seizures.

Timko, 491 Pa. 32, 417 A.2d 620 (1980) ("absent exigent circumstances, a warrantless search of

luggage 01' other personal property, in which a person has a reasonable expectation of privacy is

not permissible") .As a general rule, Pennsylvania courts hold that a search warrant is required

before police may conduct any search and without the applicability of the outlined exceptions, a

warrantless search is presumptively unreasonable. Commonwealth v. Whitlock, 69 A.3d 635,

63? (Pa. Sup. 2013) (see also Commonwealth v. White, 543 Pa. 45, 669 A.2d 896, 900 (1995);

Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621, 627 (2007); Commonwealth v. Jones,

605 Pa. 188, 988 A.2d 649, 656 (2010)).

8. ·            Warrantless searches or seizures are presumptively unreasonable subject to certain

established exceptions. Id. (citation omitted); see also Commonwealth v. Bostick, 64 A.2d 543,

(Pa.Super. 2008); Commonwealth v. BlU'gos, 64 A.2d 641 (Pa.Super, 2013), appeal denied 79

A.3d 635 (warrantless searches and seizures are unreasonable per se, unless conducted pursuant

to a specifically established and well-delineated exception to the warrant requirement);

Commonwealth v. Caban, 60 A.3d 120 (Pa.Super. 2012) appeal denied 79 A.3d 1097 (a search




                                                                                                     ..
                                   (


conducted without a warrant is constitutionally impermissible unless an established exception

applies).
      ·"
9.          The ability to justify a particular law enforcement practice is judged by balancing, its

intrusion of an individual's right to privacy against the furthering of legitimate governmental
       -:
interests.
       I

10.         When the arrest is made, it is reasonable for the arresting officer to search the person
                                                                                                           I
arrested in order to remove any weapons that the latter might seek to use in order to resist arrest

or effect his. escape. Chime! v. California, 395 U.S. 752 (1969). A search
                                                                       .
                                                                           incident to arrest

complies with the Fourth Amendment when it is confined to, and controlled by, the

circumstances warranting the intrusion. U.S. v. Myers, 308 F.3d 251, 266-267 (3d Cir. 2002).

11.         Pennsylvania constitution authorizes limited search for weapons when-officer has

reasonable and articulable suspicion that suspect may have access to a weapon. Commo11wealth

v. Morris, 537 Pa. 417:·644 A.2d 721 (1994).

12.         T4e scope of a search incident to arrest "extends not only to the.arrestee's person but also

into. the area within the arrestee's "immediate control", Commonwealth v. Taylor, 565 Pa. 140,

158;771 A.2d 1261, 1271 (Pa. 2001). The two-part rationale for the search incident to arrest

exception are (1) the need to disarm an arrestee fol' safety purposes and (2) the need to preserve

evidence. Td.

13.         Exceptions to the warrant requirement stem from the balancing of an individual's right of

privacy and the need for police officers to be able to protect themselves while making an

carefully crafted exception that balances the tension between the need for effective law

enforcement and the constitutionally guaranteed liberty of the people.




                                                                                                       •
                                    (


 14.       Whether exigent circumstances exist so as to excuse the warrant requirement for a search

 depends on examination of all surrounding circumstances in a particular case. Commonwealth v.

 Griffi~, 785 A.2d 501 (Pa.Super. 2001). Exigent circumstances exception to the warrant

 requirement recognizes that some situations present compelling need for instant arrest, and that
          -,
 delay t& seek a warrant will endanger life, limb or overriding law enforcement interests; in these
          I


 cases, court's strong preference for use of warrant must give way to urgent need for immediate

 action. Commonwealth v. Richter, 791 A.2d 118i (Pa.Super, 2002). However, decisions made

 pursuant to the exigent circumstances exception to the warrant requirement "must be made

 cautiously because it is an exception which by its nature can very easily swallow the rule unless

 applied in only restricted circumstances." Commonwealth v. Bostick, 958 A.2d 543

 (Pa.Super.2008), appeal denied 987 A.2d 158, 604 Pa. 702.

 1 S,         The possibility that a search made simultaneously with an a nest may uncover some

· hidden evidence is not sufficient to permit such a search. Taylor, 565 Pa. at 158-59, 771 A.2d at

 1272-73. Mere suspicion is not enough to justify a search when an officer has seen others use an

 objec~ to package chugs. Commonwealth v. Stevenson. 560 Pa. 345, 358-59, 744 A.2d 1261,

  1268 (2000) (citing Commonwealth v. Pinno, 433 Pa. 1, 248 A.2d26 (1968) (even strong reason

 to    su~pect will not adequately substitute for probable cause as grounds for search and seizutej).

 Although Pennsylvania courts are sympathetic to the dangers and uncertainties that police

  officers confront while making custodial arrests, a warrantless search, however, is limited by the

  exigencies that necessitate its initiation. Id. The search and seizure of common containers cannot

  be justified on the ground that they may be used to store narcotics.

  16.          If the prosecution can establish by a preponderance of the illegally searched evidence

  would have inevitably been discovered by lawful means, then the evidence is admissible.




                          •'
                      /   ~~l
                .r/
Commonwealth v_. Gonzalez, 979 A2d 879, 890 (Pa.Super. 2009); See Nix. v. Williams 104 ·

S.Ct 2501 (1984) ("The purpose of the inevitable discovery rule is to block setting aside

convictions that would have been obtained without police misconduct.").

17.          Inventory searches are a well-defined exception to the search warrant requirement.
        '·
        t
Col6rado v.Be1iine, 479 U.S. 367 (1987); See also Commonwealth v Nace, 571 A.2d 1389 (Pa.

1990). So long as warrantless inventory search is pursuant to caretaking functions of police

department through an inventory search the conduct of police will not be viewed as

unreasonable, Commonwealth v. Woody, 679 A.2d 817, 451 Pa.Super, 324, (Pa.Super. 1996);

see also Commonwealth v. White, 543 Pa. 45, 57-58, 669 A.2d 896, 903 (1995) (stating that

police can permissibly conduct an inventory search when «police are able to show that the search

was in fact a search conducted for the purposes of protection of the owner's property while it·

remains in police custody; protection of the police against claims oflost or stolen property; and

protection of the police against danger"). The purpose of an inventory search is not to find

evidenceof a crime. Commonwealth v. Hennigan, 753 A.2d 245, 254 (Pa.Super, 2000). Rather,

au inventory takes place when it is not coupled with the intent of discovering evidence of a
   -,

crime. Commonwealth v. Brandt, 244 Pa. Super. 154, 160, 366 A.2d 1238, 1241 (1.976). The

inventory is conducted notfor the purpose of uncovering incriminating evidence, but for the

purpose of safeguarding the contents of the vehicle for the benefit of both the owner and the

police. Id. However, if it is found that the search was conducted as part of a criminal

investigation, it is not an inventory search. White, 543 Pa. at 58, 669 A.2d at 903, When the

court finds that the search constituted a criminal investigation the inventory search exception is

inapplicable. Id.
         18.     However, for a warrantless inventory search to be conducted without being in violation of

        the Fourth Amendment> it must be performedpursuant to police procedures with standardized

         criteria and established routine. U.S. v. Valentine, 2013 WL 1285426> *5 (2013) (citing South

        Dakota v. Opp~m1an, 428 U.S. 364, 369-371> 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); c"olorado

        v. Bertine> 479 U.S. 367 (1987)).
,:.-

       . 19.     Without a policy to guide police officers, an inventory search is unconstitutional. The

        inevitable discovery doctrine exception cannot be invoked freely. The government must be held

         by the court to meet its burden of proof if it is to be prevented from swallowing the Fourth

        Amendment and the exclusionary rule altogether.

         20.     Without testimony or written evidence of inventory search procedures, a court cannot

         simply assume that, had the warrantless search of the bag not taken place, what would have

         happened once it was transported to tho police station.

         21.     Evidence obtained in violation of a criminal suspect's constitutional rights to be free from

         unreasonable search and seizure is subject to suppression under the exclusionary rule. The

         exclusion of unconstitutionally obtained evidence is not a constitutional right but a constitutional

         remedy ... Edmunds> 526 Pa. at 395 n.10, 586 A.2d at 898 n.10 (discussing the relationship

         between the federal and Pennsylvania constitutional provisions on unreasonable search and

         seizure andrejecting under Pa. Const. Art. I, Section 8, the good faith exception to the

       - exclusionary rule adopted by the U;S. Supreme Court in United States v. Leon, 468 U.S. 897

         (1984), under the Fourth Amendment); see Commonwealth v. Shaw, 476 Pa. 543, 555-56> 383

         A.2d 496, 502 (1978).

         22. ·   Applying the foregoing analysis to the facts of this case demonstrates that the warrantless

         search of the Pepsi storage can neither be justified on grounds of a search incident to a valid
arrest as Corporal McDevitt liad restrained the defendant sufficiently to remove any risk of a

retrieval of a weapon from the gym bag and the Pepsi storage can itself is not incriminating or
                                                                                                                       .•.
illegal.

23.        W11~re Officer McDevitt did not expressly testify to any standardized inventory search
              iY

procedure ~stablished by the Ridley Township Police Department, there can be no inference that

the controlled substances and paraphernalia seized from inside the Pepsi storage container would

have inevitably been discovered.

           Wherefore, for all the foregoing reasons, Corporal Mclrevitt's search and seizure of the

Pepsi storage can exceeded the reasonable scope of a permissible search incident !o a valid arrest

and where no other constitutionally permissible exception to the warrant requirement, all

evidence of the controlled substances and paraphernalia contained in. the Pepsi storage container

shall be suppressed and any evidence of any kind pertaining to the aforementioned shall be

excluded from trial in this matter.




                                                                                                      ••,...-•-        ... --.I



                                                                                                                          .       ~·
                                                                                                          .,,
                                                                                                          -
                                                                                                      .




                                                                                                                  ..
                          .,.
                           ,'{
                       ._,,·
