                                [J-93-2018] [MO: Todd, J.]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                   EASTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                  :   No. 1 EAP 2018
                                                :
                         Appellee               :   Appeal from the Order of the Superior
                                                :   Court entered on 04/20/2017 at No.
                                                :   1191 EDA 2016 (reargument denied
                 v.                             :   06/16/2017) affirming in part,
                                                :   reversing in part and remanding the
                                                :   Order entered on 03/18/2016 in the
 ANGEL SANTIAGO,                                :   Court of Common Pleas, Philadelphia
                                                :   County, Criminal Division, at No. CP-
                         Appellant              :   51-CR-0000903-2015.
                                                :
                                                :   ARGUED: December 6, 2018


                                     DISSENTING OPINION


JUSTICE WECHT                                                   DECIDED: June 18, 2019
       The Majority acknowledges the exclusionary rule, recognizing that “an

identification made wholly as a result of a warrantless search . . . [is] tainted and

inadmissible.”        Maj. Op. at 27.   The Majority further observes that “eyewitness

identification of a defendant occurring prior to illegal conduct by law enforcement may be

admissible, if based on observations that are independent of the taint of the subsequent

unconstitutional search.” Id. (emphasis in original). I agree that, when a witness’ ability

to identify a suspect is separate and uninfluenced by any subsequent illegality, the

witness’ in-court identification of that suspect may be admissible. Here, however, the

Commonwealth failed to meet its burden to prove that such an independent basis existed.

The Majority also misconstrues the burden of proof applicable to challenges asserting

that evidence is fruit of the poisonous tree. Moreover, in the context of the admissibility

of identification testimony, the Majority’s analysis, and particularly its reliance upon this
Court’s decision in Commonwealth v. Garvin, 293 A.2d 33 (Pa. 1972), effectively allows

the independent basis exception to the exclusionary rule to swallow the rule itself. For all

of these reasons, I respectfully dissent.

       The fruit of the poisonous tree doctrine, announced by the United States Supreme

Court in Wong Sun v. United States, 371 U.S. 471 (1963), provides that evidence of any

kind—physical or testimonial—obtained by police as a result of an unconstitutional search

may not be used against the subject of the search. See id. at 485-86. To determine

whether evidence must be excluded as fruit of an unlawful search, courts must consider

“whether, granting establishment of the primary illegality, the evidence to which instant

objection is made has been come at by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.” Id. at 488 (citation and

internal quotation marks omitted).

       In United States v. Wade, 388 U.S. 218 (1967), the High Court confronted the

question of whether in-court identifications of a defendant by witnesses to a bank robbery

were admissible following a pre-trial lineup conducted outside the presence of counsel.

The Court concluded unequivocally that such in-court identification testimony is subject

to the fruit of the poisonous tree doctrine. See id. at 241. The Court remanded the case

to allow the government the “opportunity to establish by clear and convincing evidence

that the in-court identifications were based upon observations of the suspect other than

the lineup identification.”   Wade, 388 U.S. at 240.        The Court rejected a per se

exclusionary rule, but emphasized that a “rule limited solely to exclusion of testimony

concerning identification at the lineup itself, without regard to the admissibility of the

courtroom identification, would render the right to counsel an empty one.” Id.1

1      In a companion case argued and decided on the same day as Wade, the Court
likewise held that “[t]he admission of the in-court identifications without first determining
that they were not tainted by the illegal lineup but were of independent origin was



                              [J-93-2018] [MO: Todd, J.] - 2
      In United States v. Crews, 445 U.S. 463 (1980), the Court expounded further upon

the application of the fruit of the poisonous tree doctrine to in-court identification

testimony. Over a four day period, Crews robbed and harassed three women in the

Washington Monument bathroom. Two of them gave the police descriptions of the

perpetrator.   A few days later, police observed an individual matching the victims’

descriptions and detained him. The victims identified Crews in a photo array and lineup.




constitutional error.” See Gilbert v. California, 388 U.S. 263, 272 (1967). Dissenters in
Wade and Gilbert admonished the Court for imposing a burden upon the prosecution to
prove by clear and convincing evidence that an in-court identification has an independent
basis. Justice Hugo Black opined:
      I think the rule fashioned by the Court is unsound. The ‘tainted fruit’
      determination required by the Court involves more than considerable
      difficulty. I think it is practically impossible. How is a witness capable of
      probing the recesses of his mind to draw a sharp line between a courtroom
      identification due exclusively to an earlier lineup and a courtroom
      identification due to memory not based on the lineup? What kind of ‘clear
      and convincing evidence’ can the prosecution offer to prove upon what
      particular events memories resulting in an in-court identification rest?
Wade, 388 U.S. at 248 (Black, J., concurring and dissenting). See also id. at 251 (White,
J., concurring and dissenting) (positing that, for “all intents and purposes, courtroom
identifications are barred if pretrial identifications have occurred without counsel being
present[,]” because the “clear and convincing proof” required by the prosecution is “a
heavy burden for the State and probably an impossible one”).
        As I discuss further below, and as scholars have acknowledged, these concerns
have largely been mitigated by courts’ routine allowance for admission of in-court
identification testimony based upon the mere opportunity to observe the defendant during
the crime. See infra at 10-13; Charles A. Pulaski, Neil v. Biggers: The Supreme Court
Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan. L. Rev. 1097, 1100
(1974) (“[T]he heavy burden of proof on the prosecution to which the Wade dissenters
objected does not really exist, at least in a functional sense[,]” because “many lower
courts have found that such an independent basis exists if the witness enjoyed any
opportunity whatsoever, no matter how meager, to observe the offender at the time of the
crime.”).



                             [J-93-2018] [MO: Todd, J.] - 3
These out-of-court identifications were ultimately suppressed as fruit of the poisonous

tree, because Crews was arrested without probable cause.2

        Proceeding to address the admissibility of the witness’ in-court identification, the

Crews Court observed that, “[i]n the typical ‘fruit of the poisonous tree’ case . . . the

challenged evidence was acquired by the police after some initial Fourth Amendment

violation[.]”   Id. at 471. However, the Court acknowledged as well that a witness’

encounter with a suspect that occurs prior to a constitutional violation nonetheless may

result in identification testimony that has been tainted by the violation, and thus may be

suppressible:

        This is not to say that the intervening photographic and lineup
        identifications—both of which are conceded to be suppressible fruits of the
        Fourth Amendment violation—could not under some circumstances affect
        the reliability of the in-court identification and render it inadmissible as well.
        Indeed, given the vagaries of human memory and the inherent suggestibility
        of many identification procedures, just the opposite may be true.
Id. at 472-73 (footnote omitted). Relying upon the fact that the witness viewed Crews at

close range for a period of five to ten minutes and that Crews matched the description

given by the witness immediately following her assault, the Court concluded that “the

witness’ courtroom identification rested on an independent recollection of her initial

encounter with the assailant, uninfluenced by the pretrial identifications[.]” Id. at 473 &

n.18. The Court emphasized that the witness’ “capacity to identify her assailant in court

neither resulted from nor was biased by the unlawful police conduct committed long after

she had developed that capacity.” Id. at 473.



2       At trial, the court permitted all three victims to identify Crews as their assailant. A
jury convicted Crews of armed robbery of the first victim and acquitted him of all other
charges. On appeal, the United States Court of Appeals for the D.C. Circuit ordered the
suppression of the first robbery victim’s in-court identification. This was the only
identification challenged on appeal to the Supreme Court.


                                [J-93-2018] [MO: Todd, J.] - 4
       These precedents cannot fairly be considered without acknowledgment of the

weight that jurors tend to place upon eyewitness identification testimony, as well as the

growing awareness of the potential for error inherent in such testimony. See Sandra

Guerra Thompson, Judicial Blindness to Eyewitness Misidentification, 93 Marq. L. Rev.

639, 643-49 (2009). Justice William Brennan recognized the importance of eyewitness

identification testimony, positing that “[t]here is almost nothing more convincing than a

live human being who takes the stand, points a finger at the defendant, and says ‘That’s

the one!’” Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting)

(emphasis in original; internal citation omitted). The Court likewise has acknowledged

that the circumstances under which an eyewitness observes a suspect often undermine

the reliability of the testimony: “Usually the witness must testify about an encounter with

a total stranger under circumstances of emergency or emotional stress. The witness’

recollection of the stranger can be distorted easily by the circumstances or by later actions

of the police.” See Mason v. Brathwaite, 423 U.S. 98, 112 (1977).

       Another scholar has noted that courts:

       discuss eyewitness memory as if it were a fixed image, like a photo or a
       video. However, as social scientists have demonstrated over many
       hundreds of studies, eyewitness memory is highly malleable and is nothing
       like a photo or a video. An eyewitness's memory must be carefully
       preserved or it can become contaminated. Each effort to test an
       eyewitness’s memory will reshape that memory.
Brandon L. Garrett, Eyewitness and Exclusion, 65 Vand. L. Rev. 451, 485 (2012). The

Supreme Court recognized as much in Simmons v. United States, 390 U.S. 377 (1968),

cautioning against “improper employment of photographs by police,” because the

“witness thereafter is apt to retain in his memory the image of the photograph rather than

of the person actually seen, reducing the trustworthiness of subsequent lineup or

courtroom identification.” Id. at 383-84.




                              [J-93-2018] [MO: Todd, J.] - 5
       Without deploying a great deal of speculation, it is very difficult to conclude that

Officer Sanchez’ recollection of Santiago from the scene of the crime was not

impermissibly influenced by his later viewing of the photograph that he recovered

(unconstitutionally) from his warrantless (and concededly illegal)3 search of Santiago’s

cell phone. Absent from the record is any indication that Officer Sanchez gave, or even

had the ability to provide, a description of the driver prior to viewing the photograph. This

is a key distinction between today’s case and Crews. In Crews, prior to the illegal arrest

and prior to the subsequent photo array and lineup (both of which the Court determined

to be direct fruits of the unconstitutional arrest), two of the three victims provided almost

identical descriptions of the perpetrator based upon their interactions with him during the

offense. For this reason, the Crews Court determined that “the victim’s capacity to identify

her assailant in court neither resulted from nor was biased by the unlawful police conduct

committed long after she had developed that capacity.” Crews, 445 U.S. at 473. By

contrast, the record here reveals no basis upon which this Court can reach a similar

conclusion regarding Officer Sanchez’ ability to identify Santiago.

       Central to the Majority’s framing of today’s issue is its focus upon Officer Sanchez’

opportunity to observe Santiago at the time of the crime. The Majority characterizes our

inquiry as “whether the fruit of the poisonous tree doctrine warrants suppression of the in-

court identification testimony by a police officer who observed a defendant prior to an

illegal search of that defendant’s cell phone.” Maj. Op. at 9. The construction of this

question, which differs textually from that upon which we granted review, 4 highlights my

concerns with the Majority’s analysis.



3      See Maj. Op. at 3 n.2.
4      We granted allocatur on the following question:



                                [J-93-2018] [MO: Todd, J.] - 6
       First and foremost, it is imperative to reiterate that in-court identification testimony

indisputably is subject to a taint analysis under the fruit of the poisonous tree doctrine.

See Wade, 388 U.S. at 241; Gilbert, 388 U.S. at 272-73. Yet, the Majority’s analysis

obscures the Commonwealth’s burden to prove that an independent basis existed, and

thereby weakens the protections that Wade, Gilbert, and Crews established. Specifically,

the Majority maintains that Santiago did not challenge the “factual nexus” between the

primary illegality—the warrantless search of Santiago’s cell phone—and the in-court

identification, and thus characterizes Santiago’s claim as “ambiguous.” Maj Op. at 29.

The Majority goes on to characterize Santiago’s argument as advocating that “Officer

Sanchez’ testimony was retroactively tainted by the ‘flow’—the post-encounter

unconstitutional search.” Id. The Majority additionally opines that “[Santiago] did not

challenge this original observation testimony as being infected by the taint of the




       Is not the Superior Court's published opinion applying the fruit of the
       poisonous tree doctrine to in-court identification testimony inconsistent with
       controlling Fourth Amendment United States Supreme Court precedent and
       Article I, § 8, and does not its reliance on overly broad language in
       Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972), necessitate
       this Court's guidance and explicit rejection of Garvin and its progeny?
Commonwealth v. Santiago, 179 A.3d 455 (Pa. 2018). By pointing out the textual
differences between the questions put by Santiago and the Majority, I do not intend to say
that the Majority fails to address the issue upon which we granted allocatur. Rather, I
note the contrast because the Majority’s rephrasing of the issue seems to imply that the
dispositive fact regarding suppression of in-court identification testimony is whether the
witness had a prior opportunity to view the suspect. As I develop further below, this is not
the proper inquiry. See infra at 10-13. Mere opportunity does not suffice. The
Commonwealth must prove that the witness’ “capacity to identify [the suspect] neither
resulted from nor was biased by the unlawful police conduct.” See Crews, 445 U.S. at
473.



                               [J-93-2018] [MO: Todd, J.] - 7
unconstitutional search of [his] cell phone[.]” Id. at 33.5, 6 For these reasons, the Majority

concludes, Santiago did not meet his burden of proving that the in-court identification was

tainted by the subsequent illegality. See id. at 29-30 (“[Santiago] failed to establish how

the illegally searched cell phone tainted Officer Sanchez’ initial observations of [Santiago],

or to challenge the veracity of the officer’s identification. As a result, we find [Santiago]

did not meet his burden.”).

       The Majority’s position on this point fails to account for Santiago’s argument at the

suppression hearing and also impermissibly shifts the burden away from the

Commonwealth and onto the defendant. Once a motion to suppress is filed, it is the

Commonwealth’s burden to prove that the challenged evidence was not obtained in

violation of the defendant’s rights. See Commonwealth v. Wallace, 42 A.3d 1040, 1047-




5       While the Majority asserts that I “read . . . arguments into Appellant’s brief” in a
way that “borders on the clairvoyant,” Maj. Op. at 30 n.17, it is the Majority that reads out
of this case Santiago’s claims concerning “the inherent unreliability of eyewitness
identification” and “a Crews-based argument regarding a lack of capacity to identify.” See
id. These issues are fairly encompassed within Santiago’s brief before this Court.
Santiago cites to multiple cases that highlight the “fallibility of eyewitness identification[,]”
and he maintains that the court must engage in a “case by case factual determination” to
determine whether eyewitness testimony is tainted by a subsequent illegality. See Brief
for Santiago at 11, 12 n.1. In line with Wade and Crews, Santiago acknowledges that “in-
court identification will not be suppressed if the Commonwealth can fulfil [sic] its burden
to show in a particular case that the identification testimony was untainted, with an
independent origin based on the witness’ observations and memory from the incident
itself.” Id. at 16. Santiago argues that the Commonwealth failed to meet that burden
here. Id. at 17-18.
6      The Majority’s characterization of Santiago’s argument is also internally
inconsistent. Compare Maj. Op. at 29 (“[Santiago]’s focus . . . has been that Officer
Sanchez’ in-court identification, even if initially founded solely on his encounter with
[Santiago], was tainted by his post-encounter observation of [Santiago]’s photograph in
the NCIC database.”) with id. at 33 (“[Santiago] did not challenge this original observation
testimony as being infected by the taint of the unconstitutional search of [his] cell
phone[.]”).



                                [J-93-2018] [MO: Todd, J.] - 8
48 (Pa. 2012); Pa.R.Crim.P. 581(H).7 The Majority discounts Santiago’s stated position

at the outset of the suppression hearing, wherein he argued that “both the in[-]court and

out[-]of[-]court identification came directly from that warrantless search and the in[-]court

identification would be considered fruits of the poisonous tree[.]” N.T., 2/19/2016, at 5.

Santiago reiterated this argument at the end of the hearing. See id. at 39. Santiago

advanced a claim that Officer Sanchez’ ability to identify him in court was tainted by the

unconstitutional search of his cell phone, a search that resulted in Officer Sanchez

viewing the NCIC photograph. It was the Commonwealth’s burden to prove, by clear and




7        It is a hornbook principle in the law of criminal procedure that a defendant carries
no burden at the suppression hearing. See, e.g., 26A Standard Pennsylvania Practice
2d § 134.99 (“At a suppression hearing, the Commonwealth has the burden of going
forward with the evidence and of establishing that the challenged evidence was not
obtained in violation of the defendant's rights.”). This Court has consistently held as much
time and time again. See, e.g., In re L.J., 79 A.3d 1073, 1085 (Pa. 2013); Commonwealth
v. Hamilton, 673 A.2d 915, 916 (Pa. 1996); Commonwealth v. DeWitt, 608 A.2d 1030,
1031 (Pa. 1992); Commonwealth v. Ryan, 407 A.2d 1345, 1347 (Pa. Super. 1979).
Without confronting this wealth of case law (which it somehow deems “generic”), the
Majority invokes Nardone v. United States, 308 U.S. 338 (1939), to support its conclusion
that Santiago had some “explanatory burden” during the suppression hearing to prove a
factual nexus between the illegal search of his cell phone and Officer Sanchez’ in-court
identification testimony or that Officer Sanchez lacked the capacity to identify Santiago
based upon his observations at the time of the crime. See Maj. Op. at 30 n.17. This
upends the well-established burden of proof standard for suppression hearings. Indeed,
my research reveals that this Court has never relied upon or cited Nardone for the
Majority’s premise, a premise that flouts the above-cited rule that a defendant bears no
burden at the suppression hearing.
         Santiago challenged the admission of Officer Sanchez’ in-court identification as
fruit of the unconstitutional search of Santiago’s cell phone. At this point, Santiago met
his “burden,” although I am hesitant to characterize it as such inasmuch as Santiago
carries no burden. At the suppression hearing, it was the Commonwealth’s burden to
prove that Officer Sanchez’ testimony rested on an independent basis, separate from and
untainted by the intervening illegality.




                              [J-93-2018] [MO: Todd, J.] - 9
convincing evidence, that Officer Sanchez’ in-court identification testimony was not

unlawfully tainted by the illegal view of that NCIC photo.8

       Santiago’s argument that Officer Sanchez’ ability to identify Santiago in court was

tainted by the “flow” from the unconstitutional search of his Santiago’s cell phone is not,

as the Majority maintains, a “retroactive application of the fruit of the poisonous tree

doctrine.” See Maj. Op. at 31. Rather, Santiago’s claim is entirely consistent with the

Supreme Court’s acknowledgment in Crews that an illegality occurring subsequent to a

witness’ observations of a suspect at the time of the crime may taint the witness’ ability

to identify the defendant, and thus may warrant suppression of an in-court identification

based upon those observations. See Crews, 445 U.S. at 472 (“This is not to say that the

intervening photographic and lineup identifications—both of which are conceded to be

suppressible fruits of the Fourth Amendment violation—could not under some

circumstances affect the reliability of the in-court identification and render it inadmissible

as well.”). This is so even though the witness had the opportunity to observe the suspect

at the time of the crime. A taint examination is required.

       This leads to my second concern with the Majority’s broad framing of the issue in

terms of a witness’ observations: an opportunity to observe does not equate, ipso facto,

to an independent basis. As established by Crews, an independent basis exists when a

witness’ “capacity to identify [the suspect] neither resulted from nor was biased by the

unlawful police conduct.” See Crews, 445 U.S. at 473. Emphasis upon general factors


8       It bears noting that this case comes before us following the trial court’s order
granting Santiago’s motion to suppress. When reviewing such an order, we “consider
only the evidence of the defense and so much of the evidence for the Commonwealth as
remains uncontradicted when read in the context of the suppression hearing record as a
whole,” and when “the record supports the suppression court’s factual findings, we are
bound by those facts and may reverse only if the legal conclusions drawn therefrom are
in error.” Commonwealth v. Lukach, 195 A.3d 176, 183 (Pa. 2018) (internal citations and
quotation marks omitted).


                              [J-93-2018] [MO: Todd, J.] - 10
such as lighting conditions, physical proximity between the witness and the suspect, and

length of the encounter, while relevant to a court’s analysis, are not dispositive on their

own. A court’s focus must remain upon whether a particular witness’ identification “rested

on an independent recollection of [the] initial encounter.” Id. The term “independent”

implies necessarily that the witness’ ability to identify the suspect is separate from and

uninfluenced by the subsequent illegal police conduct.

       To allow an in-court identification to be admitted any time a witness observes a

defendant, without accounting for the effects of improper identification techniques, is to

ignore the realities of human memory.          See Sandra Guerra Thompson, Beyond a

Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony,

41 U.C. Davis L.R. 1487, 1497-1500 (2008).            Moreover, such an approach serves

functionally to diminish, if not eliminate entirely, application of the exclusionary rule to in-

court identifications.   One cannot be an eyewitness, and thus be called to provide

eyewitness identification testimony, without having observed the suspect at the time of

the crime. I do not propose that a witness’ observations at the time of the crime can never

serve as an independent basis, as the Wade dissenters feared. For example, when a

witness had a lengthy interaction with a suspect during the crime, or is familiar with the

suspect from prior encounters, or provides a detailed description of the suspect, an

independent basis may well exist. It is when these circumstances are absent, as they are

here, that a witness’ observations and memories are highly susceptible to distortion or

other taint by virtue of a subsequent illegality.

       There is no indication in the record that Officer Sanchez’ opportunity to observe

Santiago during the traffic stop provided a sufficient basis for identification that was

independent of the officer’s viewing of the illegally obtained photo. The encounter lasted

only one to two minutes, and Officer Sanchez admitted that Santiago was not making eye




                               [J-93-2018] [MO: Todd, J.] - 11
contact. At no point prior to viewing the photo did Officer Sanchez provide a description

of the driver. Officer Sanchez offered no testimony upon which we may conclude that he

had the ability, based solely upon his initial observations, to provide such a description.9

An analysis of whether an independent basis exists for the witness’ ability to identify the

defendant must require more than determining whether the witness had the mere

opportunity to observe the suspect. Otherwise, the independent basis exception to the

exclusionary rule, in the context of identification testimony, will swallow the rule itself.

       Such an outcome also undermines the deterrent purpose of the federal

exclusionary rule. The Majority emphasizes, and I agree, that the primary purpose of the

exclusionary rule for violations of the Fourth Amendment is to deter unlawful police

behavior. See Maj. Op. at 17; see also Crews, 445 U.S. at 474 (“The exclusionary

principle of Wong Sun . . . delimits what proof the Government may offer against the

accused at trial, closing the courtroom door to evidence secured by official

lawlessness.”).10 To allow an encounter to serve as the “independent basis” upon which

an in-court identification could later stand, without regard for the influence of a subsequent

illegality, is to encourage police officers at the initial encounter to engage in unlawful

conduct (i.e. searching a cell phone without a warrant or warrant exception in order to

ascertain the suspect’s identity) without any consequences. See Wade, 388 U.S. at 240


9      The Commonwealth’s opportunity to test a witness’ ability to identify a suspect is
through identification procedures performed in accordance with constitutional protections.
Where, as here, the Commonwealth violates the suspect’s constitutional rights, and
obtains an identification that is tainted by that illegality, the Commonwealth bears a heavy
burden to prove that the witness’ ability to identify the suspect can be disentangled from
the taint caused by the constitutional violation.
10     Recognizing that Article I, Section 8 of the Pennsylvania Constitution more
zealously protects individual privacy rights than the Fourth Amendment to the United
States Constitution, this Court has held that our exclusionary rule serves a separate
purpose as well: to guard against unwarranted intrusions upon an individual’s right to
privacy. See Commonwealth v. Edmunds, 586 A.2d 887, 898-99 (Pa. 1991).


                               [J-93-2018] [MO: Todd, J.] - 12
(recognizing that, unless the in-court identification is suppressed, a rule suppressing the

out-of-court identifications would serve little purpose since “[t]he State may then rest upon

the witnesses’ unequivocal courtroom identifications”).

       Also absent from the Majority’s reframing of the issue is any rigorous analysis of

Santiago’s request that we reconsider our prior decision in Garvin. Specifically, Santiago

asks this Court to disavow Garvin’s grandiose pronouncement that, “No law abiding

society could tolerate a presumption that but for the illegal arrest the suspect would never

have been required to face his accusers. Thus, we conclude that the only effect of the

illegal arrest was to hasten the inevitable confrontation and not to influence its outcome.”

Garvin, 293 A.2d at 37. The Majority declines to revisit Garvin. I would accept Santiago’s

invitation to do so. Courts (and citizens generally) should be highly skeptical of any

intrusion upon an individual’s constitutional rights, especially one that is premised upon

jurists’ incantations as to what a “law abiding society” can “tolerate.” Garvin’s “law

abiding” mantra essentially is an argument for nullification of the exclusionary rule, and it

is entirely inconsistent with Wong Sun.11

       Allow me to make a simple point, one that should not need to be repeated at this

late date: To declare that preventing the evils of crime provides a justification for police

officers to violate an individual’s constitutional rights is to dismiss the protections

enshrined in the Fourth Amendment and defy the purpose of the exclusionary rule.

Landmark Fourth Amendment precedents of the Supreme Court of the United States

repeatedly have rejected such results-oriented rationalization. See Gilbert, 388 U.S. at

273 (“[T]he desirability of deterring the constitutionally objectionable practice must prevail


11      Perhaps the Garvin majority perceived Wong Sun to be insufficiently “law abiding.”
In any case, the United States Constitution is the “supreme Law of the Land.” U.S. CONST.
art. VI, cl. 2. It is that Charter, and not Garvin’s windy declaration, that we must hold
paramount as we fulfill our own role within a “law abiding society.”


                              [J-93-2018] [MO: Todd, J.] - 13
over the undesirability of excluding relevant evidence.”); Mapp v. Ohio, 367 U.S. 643, 659

(1961) (“The criminal goes free, if he must, but it is the law that sets him free.”); Olmstead

v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting) (“[I]t is also

immaterial that the intrusion was in aid of law enforcement. . . . The greatest dangers to

liberty lurk in insidious encroachment by men of zeal, well-meaning but without

understanding.”); Weeks v. United States, 232 U.S. 383, 393 (1914) (“The efforts of the

courts and their officials to bring the guilty to punishment, praiseworthy as they are, are

not to be aided by the sacrifice of those great principles established by years of endeavor

and suffering which have resulted in their embodiment in the fundamental law of the

land.”).

       I share the concerns raised by Justice Manderino in Garvin:

       the logical and dangerous result of the majority’s opinion, that identification
       evidence following an illegal arrest does not fall within the exclusionary rule,
       is to grant law enforcement officers an unfettered discretion to illegally seize
       any person or any number of persons on mere suspicion, secure in the
       knowledge that if by chance a subsequent identification is obtained, the
       illegally seized individual will not have the right to suppress the tainted
       identification.
Garvin, 293 A.2d at 40 (Manderino, J., dissenting). These concerns are not limited to

identifications following an illegal arrest. They apply with equal force in the context of an

illegal search which results in an improper identification technique that taints a witness’

capacity to identify the suspect.12



12      I do not disagree with Garvin’s conclusion that an illegal arrest is not a bar to a
subsequent prosecution. However, the question of what evidence is admissible during
that prosecution is a separate inquiry. That a suspect, despite an illegal arrest or search,
may inevitably be called to “face his accusers,” see Garvin, 293 A.2d at 37, does not
justify permitting eyewitness testimony that has been tainted by the illegal arrest or
search.




                              [J-93-2018] [MO: Todd, J.] - 14
       There is no indication that Officer Sanchez “developed [a] capacity” to identify

Santiago that was uninfluenced by the photo obtained as a direct result of the warrantless

search of Santiago’s cell phone. See Crews, 445 U.S. at 473. The Commonwealth failed

to meet its burden of proving by clear and convincing evidence that the unlawful search

did not contribute to Officer Sanchez’ knowledge or the accuracy of his identification.

Therefore, Officer Sanchez’ in-court identification “has been come at by exploitation” of

the warrantless search of Santiago’s cell phone. See Wong Sun, 371 U.S. at 488. As a

result, the in-court identification must be suppressed.

       Justice Donohue joins the dissenting opinion.




                             [J-93-2018] [MO: Todd, J.] - 15
