Opinion
906 MDA 2021 J-S01026-22
04-08-2022
COMMONWEALTH OF PENNSYLVANIA Appellant v. TYRESE WAYNE CURRY
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 24, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000408-2020
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J. [*]
MEMORANDUM
NICHOLS, J.
The Commonwealth appeals from the order granting Appellee Tyrese Wayne Curry's motion to suppress evidence recovered from his vehicle during a warrantless search. The Commonwealth argues that the trial court erred in concluding that the inevitable discovery doctrine did not apply. We reverse and remand for further proceedings.
In its notice of appeal, the Commonwealth certified that the trial court's suppression order would terminate or substantially handicap the prosecution of its case. See Pa.R.A.P. 311(d) (stating that "in a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution").
The trial court set forth the underlying facts of this matter as follows:
On November 5, 2019, Officer Jacobi Harper of the City of Harrisburg Police Department was assigned to the Street Crimes
Unit and driving an unmarked police vehicle with his partner, an adult probation officer. At roll call before his shift, Officer Harper was provided a photograph of [Appellee] and information that he had a warrant for his arrest out of East Pennsboro Township, Cumberland County, Pennsylvania.
Around 5:30 P.M. while travelling south on 17th Street, Officer Harper passed a white Toyota travelling north on 17th Street. He stated that he observed [Appellee] driving the vehicle and recognized him through the windshield from the photograph he was provided at roll call. The common practice of Harrisburg Police is to initiate a traffic stop of a vehicle by blocking the subject vehicle in the front with one police vehicle, and another police vehicle behind the subject vehicle. Officer Harper, along with another police vehicle, initiated a traffic stop of [Appellee's] vehicle in the northbound lane of 17th Street, effectively blocking the lane of travel. However, he could not remember if his vehicle was in front or behind [Appellee's] vehicle.
Officer Harper approached the vehicle and immediately commanded [Appellee] to exit the vehicle. [Appellee] was placed in handcuffs and searched incident to arrest. Officers recovered a small amount of suspected marijuana and $170. While [Appellee] was detained and secure[d], Officer Harper testified that he conducted a search of [Appellee's] vehicle specifically because it smelled of marijuana. Officer Harper did not ask [Appellee's] consent to search, nor did he attempt to secure a search warrant. Approximately $3,000 in cash, forty (40) bundles of suspected heroin, multiple cell phones, and a ski mask were recovered from [Appellee's] vehicle.
Due to the vehicle blocking a travel lane, Officer Harper had the vehicle towed. Officer Harper testified that Harrisburg Police have a policy to conduct an inventory search of a vehicle that is towed if it has not been otherwise searched. He further explained that when conducting an inventory search, the entire vehicle is searched for jewelry, cell phones, currency, etc. and secured until the individual can pick it up. Typically, when a vehicle is towed for blocking a travel lane, it is towed to an unsecure lot and Harrisburg Police want to ensure that the individual's property is secure. A copy of the purported policy was not admitted into evidence. An inventory search was not conducted on [Appellee's] vehicle. Apparently, no attempt was made to secure [Appellee's] personal property in the vehicle.Trial Ct. Op., 8/5/21, at 2-4.
After police recovered the contraband from the vehicle, Appellee was charged with possession with intent to deliver (PWID), possession of drug paraphernalia, and possession of a small amount of marijuana. Appellee subsequently filed a motion to suppress the evidence recovered from his vehicle, claiming that police did not have exigent circumstances to conduct a warrantless search. Mot. to Suppress, 4/1/21, at 4-5 (citing Commonwealth v. Alexander, 243 A.3d 177, 181 (Pa. 2020) (holding that police must have both probable cause and exigent circumstances to invoke the automobile exception to the warrant requirement under Article I, Section 8 of the Pennsylvania Constitution, and overruling the adoption of the federal automobile exception set forth in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014))).
35 P.S. §§ 780-113(a)(30), (a)(32), and (a)(31)(i), respectively.
At the suppression hearing, the Commonwealth conceded that there were no exigent circumstances to justify the warrantless vehicle search. N.T. Suppression Hr'g at 10, 24. However, the Commonwealth argued that suppression was improper because the evidence in Appellee's vehicle would have inevitably been discovered through lawful means. Id. at 24. Specifically, the Commonwealth reiterated that Appellee's vehicle was stopped on the roadway when police executed an arrest warrant. Id. at 24. Because Appellee's vehicle was blocking the lane of travel at the time of the stop, the police were required to remove the vehicle from the roadway, at which time they would have conducted a routine inventory search. Id.
In support, the Commonwealth presented testimony from Officer Harper, who described the department's policy for impounding vehicles that are removed from the roadway. See id. at 10-11. Specifically, the record reflects the following testimony:
[The Commonwealth]: Can you tell us about when Harrisburg City Police tows vehicles, what that process looks like?
[Officer Harper]: First we have to contact a supervisor. At that time, my supervisor was Sergeant Tyron Meik. The vehicle was blocking [traffic] so he did give me permission to tow that vehicle. We would then conduct an inventory search for valuables at that time if -- I mean, if we hadn't already had another reason to search the vehicle. . . .
[The Commonwealth]: Post-Alexander is that inventory policy the same?
[Officer Harper]: Yes, it is.
[The Commonwealth]: And when you inventory a car how does that -- how does that work? What do you do?
[Officer Harper]: So what we do is we go through the entirety of the vehicle. We're looking or jewelry, mobile phones, currency, that kind of stuff. Everything that can go with the prisoner would go with them, if not then we would take that, secure that so they can pick it up at a later date at the station.
[The Commonwealth]: Okay. And why do you do inventory searches?
[Officer Harper]: Because we don't want to leave valuables. Don's Towing has a secure lot and an unsecure lot. Most times vehicles that are just towed for, like, that kind of reason, for accidents, blocking the street, they're not placed in a secure lot. And those vehicles can easily be accessed by other people, so we want to make sure their property is secured.Id. at 10-11.
Officer Harper also confirmed that he did not conduct an inventory search of Appellee's vehicle. See id. at 19. However, the Commonwealth argued that because police would have inevitably discovered the contraband in Appellee's vehicle during a lawful inventory search, the inevitable discovery rule applied. Id. at 24-26.
On June 14, 2021, the trial court issued an order and opinion granting Appellee's motion. Trial Ct. Order & Op., 6/14/21. Therein, the trial court concluded that the inevitable discovery doctrine did not apply because police searched Appellee's vehicle for investigatory purposes and "there was no testimony related to an inventory search, and no inventory search policy was admitted into evidence." Id. at 3.
The Commonwealth filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing the Commonwealth's claims.
On appeal, the Commonwealth raises the following issue:
Whether the trial court erred in granting Appellee's suppression motion where the contraband would have inevitably been discovered pursuant to a lawful, inventory search?Commonwealth's Brief at 4.
The crux of the Commonwealth's claim is that the trial court erred in failing to apply the inevitable discovery doctrine in this case. The Commonwealth acknowledges that "[t]his search was not an inventory search-this was a search for potential contraband." Id. at 11. However, the Commonwealth asserts that after Appellee was arrested on the active warrant, Officer Harper "would have been able to tow and impound [Appellee's] vehicle pursuant to department policy. Prior to that tow, Officer Harper would have conducted an inventory search of obvious places that valuables could be stored. That search would have included the vehicle's center console." Id. at 12-13. Specifically, the Commonwealth notes that "the Harrisburg Police Department Policy is to inventory any area where valuables may be stored. As such, Officer Harper's inventory search would have led him to the vehicle's center console and the forty packets of heroin contained therein." Id. at 12. Further, the Commonwealth contends that "the towing policy outlined by Officer Harper is also supported by 75 Pa.C.S. § 3352." Id. at 11. Therefore, because the evidence would have inevitably been discovered during a lawful inventory search, the Commonwealth concludes that the trial court erred in granting Appellee's suppression motion.
We note that police are authorized to tow and store a vehicle that is stopped on a highway when "the person driving or in control of the vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before an issuing authority without unnecessary delay." 75 Pa.C.S. § 3352(c)(3).
Appellee responds that "[b]oth Officer Harper's probable cause search and the purported inevitable' inventory search, independently, would be inadmissible as evidence." Appellee's Brief at 13. Specifically, Appellee notes that "[t]he Commonwealth already conceded that Officer Harper violated Alexander" by conducting an investigative search without probable cause or exigent circumstances. Id. Further, Appellee contends that an "inventory search is only proper where police lawfully impound a vehicle and act in accordance with established policy and procedure." Id. (citing Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013) (setting forth the requirements for a valid inventory search)). Here, Appellee claims that "any inventory search that police would have conducted would be inadmissible evidence because the Commonwealth did not present any evidence that police followed established policy and procedure." Id. Therefore, Appellee concludes that the trial court properly granted his suppression motion.
When reviewing a challenge to a suppression ruling, our standard of review is
limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the [defense] prevailed before the suppression court, we may 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 record as a whole. Where the suppression court's factual findings are supported by the record, the appellate court is bound by those findings and may reverse only if the court's legal conclusions are erroneous. Where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to plenary review.Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation omitted and formatting altered).
The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures. A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies.Commonwealth v. Simonson, 148 A.3d 792, 797 (Pa. Super. 2016) (citations omitted and formatting altered).
Such exceptions include, among other things, the automobile exception and the inventory search exception. See Alexander, 243 A.3d at 181 (holding that police may invoke the automobile exception by establishing both probable cause and exigent circumstances); see also Commonwealth v. Hennigan, 753 A.2d 245, 254 (Pa. Super. 2000) (stating that "[i]nventory searches are a well-defined exception to the search warrant requirement").
In distinguishing between automobile searches and inventory searches, this Court has explained:
A warrantless inventory search of an automobile is different from a warrantless investigatory search of the same. An inventory search of an automobile is permitted where: (1) the police have lawfully impounded the automobile; and (2) the police have acted in accordance with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle. A warrantless investigatory search of an automobile requires both a showing of probable cause to search and exigent circumstances.Hennigan, 753 A.2d at 255 (citations omitted).
We note that our decision in Hennigan pre-dated our Supreme Court's adoption of the federal automobile exception in Gary. However, our Supreme Court's holding in Alexander marked a "return to the preGary application of our limited automobile exception under Article I, Section 8 of our Constitution, pursuant to which warrantless vehicle searches require both probable cause and exigent circumstances[.]" See Alexander, 243 A.3d at 207. Therefore, the Hennigan case accurately states the current rule for warrantless automobile searches in Pennsylvania.
However, evidence that is seized from a vehicle without a warrant, and in the absence of an exception to the warrant requirement, may still be admissible under the doctrine of inevitable discovery. See Commonwealth v. Fulton, 179 A.3d 475, 489-90 (Pa. 2018) (citing Nix v. Williams, 467 U.S. 431, 448 (1984)); see also Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009) (stating that "[u]nder the inevitable discovery exception to the exclusionary rule, the fact that challenged evidence was obtained as a result of illegal government conduct does not end the inquiry into whether the evidence was admissible at trial").
This Court has described the "inevitable discovery" doctrine as follows:
[E]vidence which would have been discovered [is] sufficiently purged of the original illegality to allow admission of the evidence....
[I]mplicit in this doctrine is the fact that the evidence would have been discovered despite the initial illegality. If the prosecution can establish by a preponderance of the evidence that the illegally obtained evidence ultimately or inevitably would have been discovered by lawful means, the evidence is admissible. The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct.Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa. Super. 2009) (citation omitted and formatting altered). Therefore, this Court has stated that evidence which "inevitably would have been recovered by lawful means should not be suppressed despite the fact that its actual recovery was accomplished through illegal actions. Suppressing evidence in such cases, where it ultimately or inevitably would have lawfully been recovered, would reject logic, experience, and common sense." Gonzalez, 979 A.2d at 890 (citations omitted and formatting altered).
This Court has cautioned that "the inevitable discovery doctrine is not a substitute for the warrant requirement. Police must demonstrate that the evidence would have been discovered absent the police misconduct, not simply that they somehow could have lawfully discovered it." Commonwealth v. Perel, 107 A.3d 185, 196 (Pa. Super. 2014) (emphasis in original). Therefore, when police conduct a warrantless search, the Commonwealth cannot invoke the inevitable discovery rule simply by claiming that the police could have obtained a warrant. Id. (noting that such an application of the inevitable discovery rule "would eradicate the need for police officers ever to obtain a constitutionally supported search warrant").
In Bailey, the defendant filed a motion to suppress a gun that was recovered from the center console of his vehicle after he was arrested during a traffic stop. Bailey, 986 A.2d at 861. The defendant argued that he did not give valid consent for the vehicle search and that police had no other justification for conducting the search without a warrant. Id. Following a suppression hearing, the trial court found that the search was unlawful and that, given that the police conducted the search for investigative purposes, it was not a valid inventory search. Id. at 862. However, the court also concluded that, even absent the evidence recovered during the unlawful search, "the car was properly subject to be impounded and towed and that it was the custom of the police to perform a routine inventory search which would have inevitably led to the discovery of the gun in the center console." Id. Therefore, the trial court denied the defendant's suppression motion based on the inevitable discovery doctrine. Id.
On appeal, this Court affirmed. Initially, the Bailey Court emphasized that the Commonwealth did not dispute the trial court's finding that the vehicle search was illegal, in that it was "not the result of proper consent and that the search was conducted with the idea of looking for evidence, not inventorying the contents of the car." Id. As such, the Bailey Court narrowed the issue to "whether the gun would have been discovered absent the invalid search." Id.
Ultimately, the Bailey Court agreed with the trial court that the illegally obtained evidence was admissible under the inevitable discovery rule. Id. at 863. In reaching that conclusion, the Court explained:
Because the police would have been able to tow [the defendant's] car pursuant to his arrest and because the police conduct routine inventory searches whenever a car is towed, and an inventory search includes looking into obvious storage places such as the center console, we must agree that the gun would have inevitably been discovered absent police error or misconduct. Therefore, the record supports the suppression court determination that evidence was not subject to suppression.Id.; see 75 Pa.C.S. § 3352; see also Commonwealth v. King, 259 A.3d 511 (Pa. Super. 2021) (concluding that impoundment was necessary because the appellant's vehicle was parked illegally on a highway, and no one was available to move the vehicle to a safe location).
Here, the trial court addressed the Commonwealth's suppression claim as follows:
The Commonwealth conceded that there were no exigent circumstances. However, it argues that the inevitable discovery doctrine is applicable to this case because the evidence would have inevitably been discovered if Harrisburg Police had conducted an inventory search pursuant to their policy. This argument is without merit.
The inevitable discovery exception to the federal exclusionary rule was first announced in Nix v. Williams, 467 U.S. 431 (1984). The Court "held that the fruits of an unconstitutional search are admissible where the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means." Perel, 107 A.3d at 194 (citing Nix, 467 U.S. at 444 (internal quotations omitted)). However, the inevitable discovery doctrine under Article I, Section 8 of the Pennsylvania Constitution does not mirror its federal counterpart. The Supreme Court explained:
If our sole purpose in applying Article I, Section 8 to the facts of this case were to deter police misconduct, we would be constrained to rule in favor of the Commonwealth, for in balancing the interests, it is apparent that society's interest in arresting those guilty of serious crime should not be thwarted where police would inevitably and independently arrive at the same evidence, but for their illegal conduct. However, where our task is not merely to deter police misconduct, but also to safeguard privacy and the requirement that warrants shall be issued only upon probable cause, our conclusion is different.
Perel, 107 A.3d at 195 (citing Commonwealth v. Mason, 637 A.2d 251 (Pa. 1993) (internal citations omitted)). Further,
[W]here law enforcement officers engage in apparent misconduct by negating the warrant requirement, the Commonwealth only can avoid suppression by demonstrating a source truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct.
Id. (citing Mason, 637 A.2d 251 (Pa. 1993) (internal citations omitted) (internal quotations omitted)). Simply stated, "the inevitable discovery doctrine is not a substitute for the warrant requirement. Police must demonstrate that the evidence would have been discovered absent the police misconduct, not simply that they somehow could have lawfully discovered it." Id. at 196 (emphasis in the original). The Commonwealth argues that the inevitable discovery doctrine should apply in this case because the City of Harrisburg Police Department could have searched Appellee's vehicle without a warrant based on the inventory search exception.
One exception to the warrant requirement is the inventory search:
A warrantless inventory search is permitted where: (1) police have legally impounded the vehicle; and (2) they conduct the search in accordance with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle. The purpose of this type of search is not to find evidence of crime. Rather, it is intended: (1) to protect the owner's property while in official custody; (2) to protect the polic[e] against claims of lost or stolen property; (3) to protect the police from danger; and/or (4) to help the police in determining whether the vehicle was stolen [and] abandoned.
Commonwealth v. West, 937 A.2d 516, 526 (Pa. Super. 2007) (citing Hennigan, 753 A.2d 245) (internal citations omitted).
In the instant case, Officer Harper stated that Appellee's vehicle was towed pursuant to a Harrisburg Police policy because the vehicle blocked a travel lane. He also explained the policy of Harrisburg Police when pulling a vehicle over for a traffic stop -one police vehicle pulls in front of the subject vehicle, and another pulls behind it, effectively blocking the subject vehicle from continuing to travel. As a result, one policy of Harrisburg Police caused Appellee's vehicle to block traffic and another policy had it towed.[fn1] While the towing policy is questionable, this court is constrained to find that law enforcement legally towed Appellee's
vehicle because it was blocking a travel lane; however, there is a concern that an inventory search of non-contraband property was not conducted.
[fn1] The court notes that it is conceivable that Appellee would have pulled over in a legal parking space if Harrisburg Police did not trap his vehicle. If Appellee was in a legal parking space, then Harrisburg Police would not have been permitted to tow the vehicle and potentially conduct an inventory search.
The Commonwealth has the burden to prove that the search was conducted pursuant to a reasonable policy.
An inventory search is reasonable if it is conducted pursuant to reasonable standard polic[e] procedures and in good faith and not for the sole purpose of investigation. . . . Said another way, the inventory search must be pursuant to reasonable police procedures, and conducted in good faith and not as a substitute for a warrantless investigatory search.
Hennigan, 753 A.2d at 255 (internal citations omitted). In the instant case, Officer Harper specifically testified that he did not conduct an inventory search of Appellee's vehicle. Rather, he searched the vehicle based on the smell of marijuana alone. It is clear that the sole purpose of searching Appellee's vehicle was to investigate potential criminal activity. Additionally, the Commonwealth presented no evidence regarding the inventory search policy other than Officer Harper's testimony that an inventory search is conducted when there is no other reason to search a vehicle.
Therefore, we find that the Commonwealth has failed to demonstrate that the warrantless search of Appellee's vehicle was conducted in accordance with a reasonable inventory search policy. We further find that the inevitable discovery doctrine is not applicable to this case under Article I, Section 8 of the Pennsylvania Constitution.Trial Ct. Op., 8/5/21, at 4-7 (some footnotes omitted, formatting altered).
Based on our review of the record, we conclude that the trial court erred in its application of the law. Smith, 164 A.3d at 1257.
To invoke the inevitable discovery doctrine, the Commonwealth need only demonstrate "by a preponderance of the evidence that the illegally obtained evidence ultimately or inevitably would have been discovered by lawful means[.]" Bailey, 986 A.2d at 860 (emphasis added); see also Fulton, 179 A.3d at 489-90. Here, there is no dispute that Officer Harper's warrantless search was unlawful and that it was not a valid inventory search. However, those facts are not dispositive. See Gonzalez, 979 A.2d at 890 (reiterating that "the fact that challenged evidence was obtained as a result of illegal government conduct does not end the inquiry into whether the evidence was admissible" because evidence which "inevitably would have been recovered by lawful means should not be suppressed despite the fact that its actual recovery was accomplished through illegal actions"); see also Bailey, 986 A.2d at 862 (noting that although the officer's search was unlawful, the primary issue was whether the contraband in the appellant's vehicle "would have been discovered absent the invalid search").
As noted previously, the police had the authority to impound Appellee's vehicle pursuant to his arrest. See 75 Pa.C.S. § 3352(c)(3). At the suppression hearing, Officer Harper testified that it is department policy for police to conduct an inventory search before impounding a vehicle, unless another type of search has already occurred. See N.T. Suppression Hr'g at 10-11. As this Court noted in Bailey, an inventory search "includes looking into obvious storage places such as the center console." See Bailey, 986 A.2d at 863. Therefore, had Officer Harper refrained from conducting the unlawful search, police would have nonetheless impounded the vehicle pursuant to Appellee's lawful arrest and would have discovered the contraband located inside of Appellee's center console during a routine inventory search. See id.; see also Commonwealth v. Heidelberg, 267 A.3d 492, 505 (Pa. Super. 2021) (en banc) (stating that, even if the police failed to establish an exception to the warrant requirement, the evidence obtained from the appellant's vehicle was nonetheless admissible under the inevitable discovery doctrine because the appellant was arrested while his car was stopped on a city street and "the impoundment of the vehicle at the city garage would have led to an inventory of the vehicle's contents"); King, 259 A.3d at 522 (stating that, even if police unlawfully searched the appellant's center console, the evidence was admissible under the inevitable discovery doctrine because the appellant's vehicle was subject to impoundment and the evidence "would have been procured pursuant to a lawfully executed inventory search").
Therefore, under the specific circumstances presented in this case, we are constrained to find that although Officer Harper recovered the contraband from Appellee's vehicle during an unlawful search, that evidence is nonetheless admissible under the inevitable discovery rule as applied by the courts of this Commonwealth. See Bailey, 986 A.2d at 863. Accordingly, the trial court erred in granting Appellee's motion to suppress.
We emphasize that the inevitable discovery rule remains limited in scope. See e.g. Perel, 107 A.3d at 195-97 (concluding that the police search did not fall within the "narrow confines" of the inevitable discovery doctrine because there was no "alternative justification" for the unlawful search, and emphasizing that police cannot invoke the inevitable discovery rule simply by claiming that they could have gotten a warrant). However, under the circumstances of this case, where the Commonwealth established that the evidence would have been discovered during a lawful inventory search, we conclude that the inevitable discovery doctrine clearly applies. See Bailey, 986 A.2d at 862-63.
Order reversed. Case remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.