Commonwealth v. Robinson

OLSZEWSKI, Judge,

dissenting.

I agree with the majority’s insightful analysis and conclusion that the police did in fact have probable cause to believe that the brown paper bag contained drugs. I must, however, disagree with the majority’s statement that this is the sole question presented on appeal. The next question which we must logically address is what should the police have done next: searched the bag immediately, as they did, or first procured a warrant and then searched the bag?

Since the suppression court concluded that the police lacked probable cause to search the bag, it never reached this purely legal question. Now that we have decided that there was probable cause, we must determine what the officers’ next step should have been. The bag was in a house, the police had no search warrant or consent, and there were no exigent circumstances. 1 Could the police immediately open the bag and examine its contents? The answer is clearly no.

A home and its contents are surrounded by the highest expectation of privacy our law recognizes. Payton v. New York, 445 U.S. 573, 589-590 , 100 S.Ct. 1371, 1381-1382 , 63 L.Ed.2d 639 (1980) (discussing the sanctity of the home); Commonwealth v. Edmunds, 526 Pa. 374, 395-97 , 586 A.2d 887, 898-899 (1991) (Pennsylvania Constitution accords even *129 greater weight to privacy interests than federal constitution). This expectation acts as a sort of force field which the police cannot penetrate without a warrant, or a proper exception to the warrant requirement. Payton, supra; see also Commonwealth v. Roland, 535 Pa. 595, 597 , 637 A.2d 269, 270 (1994). While probable cause alone might suffice in an automobile search, see, e.g., Commonwealth v. Morris, supra 422 Pa.Super. at 343, 619 A.2d 709 , the police needed a warrant to see what Tamika Robinson kept in closed containers in her Chester home.

The majority correctly notes that when the police have an articulable suspicion that something contains drugs, they may be justified in briefly seizing it while they investigate further or obtain a warrant. United States v. Place, supra 462 U.S. 696 , 103 S.Ct. 2637 (police properly detained passenger and luggage based on articulable suspicion that the passenger was carrying drugs). But detaining the bag is one thing; searching it is another.

Here, the Commonwealth could have detained Tamika Robinson and the bag while one of them went to a magistrate to obtain a warrant. If a neutral and detached magistrate agreed that the incriminating circumstances surrounding the discovery of the bag constituted probable cause, then the magistrate would issue a warrant and the police could properly open the bag and examine it. If the magistrate disagreed, then the police would have to respect Ms. Robinson’s privacy rights. While the trip to a magistrate may be annoying, especially when the police feel certain about what they will discover, it is still required by the Fourth Amendment and by Article I, Section 8 of the Pennsylvania Constitution.

The record shows that the Commonwealth realized this problem at the suppression hearing, and argued that getting a warrant first was unreasonable under the circumstances because by looking in the bag, the officer would only be “confirming what he already knows.” N.T. 3/15/94 at 63. 2 Of course, the officer did not know for certain that the bag *130 contained drugs — he only had a strong and well-supported suspicion which we have held constituted probable cause. The Commonwealth should remember that the further step of confirming this suspicion with a magistrate is not unreasonable, but a constitutional mandate. Rather, it is searching a home without a warrant which is presumptively unreasonable. Roland, supra.

I would also note that the “plain feel” doctrine has no application in this case. Plain feel has recently emerged as an analogy to the plain view doctrine, under which police may seize contraband in plain view from a lawful vantage point without first procuring a warrant. Minnesota v. Dickerson, supra, — U.S. at-, 113 S.Ct. at 2136, 124 L.Ed.2d at 345. If any further search is needed to confirm the object’s incriminating character, plain view will not apply. Id. (citing Arizona v. Hicks, 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987) (moving a stereo to look at its serial number was a search, and precluded application of the plain view doctrine)). To deliberately pick something up and feel it is every bit as much of a search as moving an object to get a better view. 3

Moreover, just as plain view requires the police to lawfully be in a position to view the object, plain feel requires the same lawful access. Minnesota v. Dickerson, supra at-, 113 S.Ct. at 2137, 124 L.Ed.2d at 346. This is .why the only plain feel cases we have seen, and are likely ever to see, have stemmed from Terry stop-and-frisk situations. Id.; accord, Commonwealth v. Johnson, supra 429 Pa.Super. 158 , 631 A.2d 1335 . Even if they are lawfully in a home, the police may not go feeling around for contraband any more than they may look for it in closed containers, drawers and cabinets; that is, not without a warrant or a proper warrant exception.

In sum, although I agree with the majority that the police had probable cause to search the bag, I would also hold that their failure to procure a warrant before searching it rendered *131 the search illegal. I would therefore affirm the lower court’s suppression order.

. The police had an arrest warrant for Keith Robinson, but as defense counsel established at the hearing, the police could not expect to find Mr. Robinson inside the paper bag. N.T. 3/15/94 at 39. The suppression court specifically found that Ms. Robinson had given the police consent only to search for Keith Robinson, and not to search her house generally. Opinion, 4/5/94 at 1.

. The Commonwealth does not address the warrant problem in its brief, focusing all its energy on the probable cause issue. Sadly, Ms. Robinson’s brief is equally silent on the warrantless aspect of this search.

. The majority states that the feel of the bag helped establish probable cause. I would hold that probable cause was sufficiently established before Detective Fox felt the bag’s contents.