Petition for Writ of Certiorari — Pennsylvania v. Giannini

CLERK

DEC 29 1988

|

JOSEFH F. SFANIOL, vs |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

vs.

PAUL GIANNINI AND DOUGLAS VOIGHT,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

Sandra L. Elias

Deputy District Attorney

Chief, Law & Appeals

Unit

(Counsel of Record)

Dennis C. McAndrews

Assistant District

Attorney

William H. Ryan, Jr.

District Attorney

Court House

Media, PA 19063

(215) 891-4210

HV \

ws

“Fe |

ay AY

a a ied

oar a

QUESTION PRESENTED FOR REVIEW

1. Whether the Fourth and Fourteenth

Amendments to the United States Constitution

permit police to enter a home without a

warrant to halt ongoing criminal activity

which has been lawfully observed by police,

even though the “plain view" observations

were not "inadvertent", as police expected

to observe the criminal activity in

question.

TABLE OF CONTENTS

Page

Opinions Below 2

Statement of Jurisdiction 3

Constitutional Provisions Involved 4

Statement of the Case 5

Reasons for Granting Writ 11

A. The Fourth and Fourteenth

Amendments to the United

States Constitution do not

require that police obtain a

warrant before entering a home

to halt ongoing criminal acti-

vity observed in plain view,

even though such observations

were not inadvertent.

Conclusion 16

Appendices

Appendix A: Judgment and Opinion of

the Superior Court of

Pennsylvania la

Appendix B: Opinion of the Court of

Common Pleas of Delaware

County, Pennsylvania 4a

Appendix C: Order of the Supreme Court

of Pennsylvania 19a

ii

TABLE OF AUTHORITIES

Cases Page

Agnello v. United States,

5¢6 Octe. 204 G6 Beets €, 76

L.Ed.2d 145 (1925). «. «© «© «© «© «© «© «© e@ « 14

Commonwealth v. Cohen,

359 Mass. 140, 268 N.E.2d 357

(1971). - 7 e a e + + e ° . 7 ” > 7 e shaeas

Commonwealth v. Johnson,

247 Pa.Super. 208, 272 A.2d 11

(1977). oe oe — _ . o es * e e se se _ * e 2 13

Commonwealth v. Pullano,

295 Pa.Super. 68, 440 A.2d 1226 (1982). 13

Commonwealth v. Shannon,

320 Pa.Super. 552, 467 A.2d 850 (1983). 13

Coolidge v. New Hampshire,

403 U.S. 443, 91 S.Ct. 2022, 29

L-Ed.2nd 564 (1971. . «. « « « «© «© e e e iil

Mann v. Mack,

aug. CBscemese 298 (1904). . - « e« © © @ AZ

People v. Clements,

37 N.Y.2d 675, 376 N.Y.S.2d 480, 339. . 13

N.E.2d 170 (1975)

People v. Gomez,

Gee Bene wee. 4G0lG. 1964) . « « «2 ce «) &

People v. Hopko,

262 N.W.2a oe, (Mich.App. 1977) . .. .12,13

People v. Robinson,

pe ee oe ee a a

State v. Drumhiller,

36 Wash.App. 592, 675 P.2d 631 (1984) . 13

iii

a joe a

‘my. , pare ael

<

™ =

at

jy“

wea ;

alien

=

eee ae yp ee oe Tee) ey eS ees

State v. McGuire,

I3 Ariz.App. 539, 479 P.2d 187.

(1971)

State v. Morris,

i8 Or.App. 306, 525 P.2d 201. .

(1974)

State v. Peace,

520 A.od 696 (Me., 1987). e > °

State v. Redding,

362 So.2d 170 (Fla.App. 1978)

Texas v. Brown ’

460 U.S. 730, 103 S.Ct. 1535,

(ee So

United States v. Davis,

461 F.2d 1026 (3rd Cir. 1972) .

United States v. Guidry,

534 F.2d 1220 (6th Cir. 1976) .

United States v. Johnson,

553 F.2d 946 (5th Cir. 1977). .

United States v. Johnson,

561 F.2d 832 (D.C.Cir. 1977). .

United States v. Marron,

27S Gels Eade GO Sect. 14, 72 LRA.

231 (1927)

United States v. Rubin,

474 F.2d 262 (3rd Cir. 1973). .

Vaillancourt v. Superior Court,

76 Cal .Rptr. 615 (1969) . « «

Williams v. State,

331 A.2d 380 (Del. 1975)....

iv

. 12

- 13

ohZeh3

- 12

. 11

. 12

. 12

a -Se

io 11

- 414

. 12

~ 12

13

Constitutional Authorities

United States Constitution,

Amendment Four

United States Constitution,

Amendment Fourteen,Section One

is

ot

oT

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1988

NO.

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

Vs.

PAUL GIANNINI AND DOUGLAS VOIGHT

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

Petitioner, the Commonwealth of

Pennsylvania, respectfully requests that a Writ

of Certiorari issue to review the Judgment

and Opinion of the Superior Court of

Pennsylvania entered in this case.

———

OPINIONS BELOW

The opinion of the Superior Court of

Pennsylvania is unreported and is set forth in

full in Appendix A of this Petition.

The opinion of the Court of Common

Pleas of Delaware County is unreported, and

is set forth in full in Appendix Bof this

Petition.

a

STATEMENT OF JURISDICTION

The judgment of the Pennsylvania

Superior Court was entered on March 1, 1988.

The Pennsylvania Supreme Court refused

review of this matter by an Order dated

October 31, 1988. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C.

§1257(3).

CONSTITUTIONAL PROVISIONS ,INVOLVED

United States Constitution, Amendment Four,

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.

United States Constitution, Amendment

Fourteen, Section One, which provides:

All persons born or naturalized inthe

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the state wherein they reside. No state

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

state 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.

STATEMENT OF THE CASE

The instant matters are

criminal actions which were initiated by the

filing of criminal complaints on October l,

1986, charging defendants Voight and Giannini

with Possession of Cocaine with Intent to

Deliver, Criminal Conspiracy and related

offenses. Two co-defendants, David Morrow

and Michael Savage, were also charged and

entered into agreed non-trial dispositions with

the Commonwealth. A preliminary hearing

was held on December 18, 1986, with

defendants Voight and Giannini being held for

court. A pre-trial hearing on defendants'

motion to suppress was held on June l, 1987,

before the Honorable Anthony Semeraro of

the Court of Common Pleas of Delaware

County. At the conclusion of this hearing,

Judge Semeraro suppressed all evidence seized

by the Commonwealth; this Order was reduced

to writing on June 17, 1987, at which time

Judge Semeraro sua sponte dismissed all

charges against the defendants as being de

minimis. The Commonwealth appealed from

those orders, and on March l, 1988, a

Pennsylvania Superior Court panel issued a

one-page memorandum opinion affirming the

lower court. The Pennsylvania Supreme Court

refused review of this case.

The facts elicited at the pre-trial

suppression hearing revealed that on

September 19, 1986, Criminal Investigator

Robert Colden of the Haverford Township

Police Department received a telephone call

from Mr. Edward Stanley of 844 Penn Street,

Haverford Township. Mr. Stanley informed

Investigator Colden that he had observed the

individuals who lived next door at 842 Penn

Street engaged in drug use in their second

floor front bedroom. Mr. Stanley indicated to

Investigator Colden that he had been able to

observe these individuals handling small

packets containing a white substance, and

that the students would dip into these

packets and ingest the white substance. In

particular, Mr. Stanley identified defendant

Pr ; -

Giannini as being one of the individuals

engaged inthis activity. (N.T. June l, 1987

at 15-19,28). On September 26, 1986,

Investigator Colden together with Officer

Joseph Golden were admitted to the Stanley

residence in order to observe the activity at

842 Penn Street from the Stanley's third floor

room; Investigator Colden was an eight (8)

year veteran of the force, and Officer Golden

had been an officer for nine and one half (9

1/2) years, with substantial experience in

narcotics investigations and arrests. (Id. at

15-16,26-34). On September 26, 1986, the

officers observed six individuals drinking in

the front bedroom of the defendant's house at

842 Penn Street; by the use of field glasses,

the officers were able to observe a pipe with

a long tube and small bowl of the type

typically used for smoking marijuana, as well

as rolling papers of a type used for smoking

marijuana cigarettes. After approximately one

half (1/2) hour, the six individuals left the

house, got into their vehicles and departed

r 7

?

3

=

from the area. (Id. at 19-25). On September

27, 1986, Officer Golden returned to the

Stanley home at 8:30 P.M. for further

Surveillance. At 9:15 P.M., Officer Golden

observed a white male identified as Michael

Savage exit the middle bedroom of the

defendant's residence, walk to the front

bedroom, pick up an electronic scale, and

return to the middle bedroom. Officer Golden

then observed Savage plug the scale into an

electrical outlet, place a piece of white paper

on the scale, pour white powder onto the

paper and weigh the substance. In light of

Officer Golden's experience and training, he

was convinced that Savage was engaged in

weighing a controlled substance either for his

personal use or for packaging for delivery to

another. Inasmuch as Officer Golden was

dressed inplainclothes, hecalled for

uniformed officers to meet him at the

residence at 842 Penn Street; upontheir

arrival, Officer Golden walked to the front

door of the defendant's residence where he

observed a sign identifying that residence as

a “crack house". Officer Golden then

knocked on the door and Savage answered.

Savage was immediately placed under arrest,

and the uniformed detail secured the exterior

of the house as Officer Golden made a

protective sweep of the premises in order to

insure that the other known residents and/or

their visitors were not ina positionto

endanger the officers or destroy evidence.

During this protective sweep, Officer Golden

observed other drug paraphernalia within the

residence, but did not seize it. Upon insuring

that no other individuals were present in the

premises, Officer Golden seized the white

powder which he had observed from his

vantage point inthe Stanley home; at this

time, Officer Golden also seized arazor

blade, cash rolled up to forma straw, anda

plastic picture frame, all of which were on

Savage's bureau together with the white

powder. Officer Golden then applied for, and

obtained, a search warrant for the entire

St a Ae ee ey ve ee Be

premises. (Id. at 27-37,56,62-63). A search

pursuant to this warrant was conducted at

11:30 P.M. and resulted in the seizure, inter

alia, of the following: tally sheets, glassine

bags containing screens, the electronic scale,

a box containing an additional scale, aglass

vial, a pipe, tweezers, a coffee filter, and

several items of drug paraphernalia. See,

Search Warrant and Inventory C-13781. A

laboratory analysis of these items identified

the white powder as cocaine; the analysis

further revealed that one scale, two razor

blades, two bottles, one vial, the coffee

filter, the tweezers and the pipe seized by

the officers contained cocaine residue.

Moreover, four (4) additional substances found

in the residence were identified as

Benzocaine, Lidocaine, Mannitol, and Sodium

Bicarbonate; all four substances are commonly

used as cutting agents for cocaine and other

controlled substances. Id. (N.T. December 18,

1986 at 5$4-59,75-80).

10

REASONS FOR GRANTING THE WRIT

The instant matter provides this Court

with an opportunity toclarify the "plain

view” doctrine of search and seizure. On

two occasions this Court has discussed the

plain view doctrine in plurality opinions; in

each of these opinions the Court has

discussed but never clearly adopted or

rejected an “inadvertence” element to the

plain view exception. Coolidge v. New

Hampshire, 403 U.S. 443, 91S.Ct. 2022, 29

L.Ed. 2nd 564 (1971); Texas v. Brown, 460 U.S.

730 103 S.Ct. 1535, 75 L.Ed. 2nd 502 (1983).

The uncertainty which has resulted from

these decisions has created substantial

division and confusion in the appellate courts

throughout the United States. See, Search

and Seizure, LaFave Section 2.2 (a) (collecting

cases). See, United States v. Johnson, 561

F.2d 832 (D.C.Cir. 1977) (officer had seen

major narcotics packaging operation through

window); United States v. Johnson, 553 F.2d

ll

946 (Sth Cir. 1977) (informant gave pre-

arranged signal that he had seen drugs in

house from which he exited); United States v.

Gusagsyv, 5334 .24 i220 4608 €2E:;

1976)(undercover agent had seen

counterfeiting apparatus within premises);

United States v. Rubin, 474 F.2d 262 (3rd Cir.

1973) (crime in progress with threat of

destruction of contraband); United States v.

Davis, 461 F.2d 1026 (3rd Cir. 1972); People v.

Hopko, 262 N.W.2d 877 (Mich.App. 1977) (police

observed contraband in home, thus crime is

being committed in the presence of the

officer soas to justify entry); Statev.

Redding, 362 $S0.2d 170 (Fla.App. 1978);

Commonwealth v. Cohen, 359 Mass. 140, 268

N.E.2d 357 (1971) (similar facts to instant

case); State v. McGuire, 13 Ariz.App. 539,479

P.2ad 187 (1971); Vaillancourt v. Superior

Court, 78 Cal.Rptr. 615 (1969) (similar facts to

instant case); People v. Robinson, 229

Cal.Rptr. 851 (1986) (same); State v. Pease, 520

A.2d 698 (Me., 1987); Mann v. Mack, 202

12

Cal.Rptr. 298 (1984); State v. Morris, 18

Or.App. 306, 525 P.2d 201 (1974); Peoplev.

Gomez, 632 P.2d 586 (Colo. 1981) (officer saw

drugs through motel window); Williams v.

State, 331 A.2d380 (Del. 1975); Peoplev.

Clements, 37N.Y.2d 675, 376N.Y.S.2d 480,

339 N.E.2d170 (1975); State v. Drumhiller, 36

Wash.App. 592, 675 P.2d 631 (1984) (similar

facts to instant case}.

Significantly, some cases in

Pennsylvania and other jurisdictions appear to

have rejected an “inadvertence” requirement

by placing substantial emphasis upon a police

officer's observation of a crime in progress in

allowing a warrantless entry to seize evidence

Or contraband in plain view. Commonwealth

v. Pullano, 295 Pa.Super. 68, 440 A.2d 1226

(1982)? Commonwealth v. Shannon, 320

Pa.Super. 552, 467 A.2d 850 (1983);

Commonwealth v. Johnson, 247 Pa.Super. 208,

272 A.2d 11 (1977); Cubler, Hopko, Cohen,

Pease, Velsquez, United States v. Johnson,

Gomez, Drumhiller. Moreover, these holdings

appear consistent with older authority of the

United States Supreme Court on this issue.

For example, in Agnello v. United States, 269

0.8. 20, 46 8.Ct. 4, 70 L-Bd. 24145 (1925),

the Court stated as follows:

The right without a

search warrant

contemporaneously to

search persons lawfully

arrested while committing

crime and to search the

place where the arrest is

made in order to find

and seize things

connected with the crime

as its fruits or as the

means by which it was

committed as well as

weapons and other things

to effect an escape from

custody is not to be

doubted. (Citations

omitted)

Moreover, in United States v Marron, 275

U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), the

Court reaffirmed this principle, and stated the

following:

The officers were

authorized to arrest for

crime being committed in

their presence and they

lawfully arrested Birdsaw.

They had a right without

a 62 2 =F 2 2 t

contemporaneously to

14

search the place in order

to find and seize things

used to carry on the

criminal enterprise....

The authority of officers

to search and seize

things by which the

nuisance was being

maintained extended to

all parts of the premises

used for the unlawful

purpose.

Consequently, inasmuch as the

officers in the instant matter were properly

ina position to observe the contraband in

the defendants' premises, and given the

immediacy of the criminal activity which was

occurring in the presence of the officers, the

officers should be seen as entitled to enter

the premises to seize the items which they

had observed. Therefore, the "inadverence”

requirement of the plain view doctrine should

be rejected forthrightly by this Court.

15

—_—— ee a

Tat St a a il oe

CONCLUSION

For all the foregoing reasons, the

Commonwealth of Pennsylvania respectfully

requests that a Writ of Certiorari issue to

review the decision below.

Respectfully submitted,

SR ae .

<— A pe ae Law

Sandra L. Elias

Deputy District Attorney

Chief, Law and Appeals

Unit

(Counsel of Record)

Dennis C. McAndrews

Assistant District

Attorney

William H. Ryan, Jr.

District Attorney

Court House

Media, PA 19063

(215) 891-4210

16

APPENODI X

TRINA Ay AIT

la

COMMONWEALTH OF PENNSYLVANIA,

vs

PAUL GIANINI, Appellee

COMMONWEALTH OF PENNSYLVANIA

Vs

DOUGLAS VOIGHT, Appellee

IN THE SUPERIOR COURT OF

PENNSYLVANIA

NOS. 01730 Philadelphia, 1

01731 Philadelphia, 19

987

87

JUDGMENT

ON CONSIDERATION WHEREOF, it is

now here ordered and adjudged by the Court

that the judgment of the Court of Common

Pleas of Delaware County be, and the same is

hereby Affirmed.

BY THE COURT;

David A. Szewczak

Prothonotary

Dated: March 1, 1988

APPENDIX "A"

2a

COMMONWEALTH OF PENNSYLVANIA

VS

PAUL GIANINI, APPELLEE

COMMONWEALTH OF PENNSYLVANIA

Vs

DOUGLAS VOIGHT, APPELLEE

IN THE SUPERIOR COURT OF

PENNSYLVANIA

NOS. 01730 Philadelphia, 1987

01731 Philadelphia, 1987

Appeal from the Order of the Court of

Common Pleas of Dealware County, Criminal

at Nos. 6965 and 6967 of 1986.

BEFORE: CIRILLO, P.J.~, MCEWEN, AND

MONTEMURO, JJ.

MEMORANDUM:

These are consolidated Commonwealth

appeals from an order which granted

appellees' motion to suppress and which

dismissed all charges against appellees.

Appellant argues that evidence properly

observed by police officers in plain view

‘should not have been suppressed by the trial

court, and that the trial court improperly

dismissed the charges against appellees as de

3a

minimis. After acareful review of the

| record, we find that the trial court's opinion

|

has adequately disposed of appellant's

arguments and we therefore affirm.

Order affirmed.

4a

IN THE COURT OF COMMON PLEAS OF

DELAWARE COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

vs

DOUGLAS VOIGHT

AND

PAUL GIANNINI

NOS. 86-6965, 86-6967

John Auritt, Esquire, Attorney for Defendants

Voight and Giannini, 130 E. State Street

Media, PA 19063

Sandra Elias, Esquire, Assistant District

Attorney, District Attorney's Office,

Courthouse, Media, PA 19063

o. 2 2 2 et

Semeraro,J. Filed: JUL 8, 1987

This Appeal by the Commonwealth of

Pennsylvania is froma June 20, 1987 Order

granting Defendants' Motion to Suppress

State's evidence on the ground that it was

APPENDIX "“"B"

idan ell

5a

obtained pursuant to a violation of

Defendants’ constitutional right against

unreasonable searches and seizures. The

suppression of evidence in these

circumstances prompted the Court to grant

defendants' Motion to Dismiss the charges.

6a

I. FACTUAL BACKGROUND

Considering the suppression record! the

facts are: On September 19, 1986, Mr. Stanley

of 842 Penn Street, Haverford Township, a

previously ~unencountered' informant tolda

Haverford Township Policeman that he saw

into the house next door where neighboring

college students engaged in what "looked like

they were using drugs." Responding to that

information Officer Colden went to the

informant's home on the above date to

observe. He was prevented as the lights were

all extinguished in Defendants' residence next

door. He departed returning exactly one

week later, (on the next Friday), September

26, 1986 accompanied by Officer Golden, a

fellow officer. Positioned on the third floor

the two officers, viewed the second floor by

field glasses. They observed 5 or 6 college

students on the second floor next door. They

lpue to the unavailability of Notes of

Testimony at the time f this writing this

Opinion is based on the recorded tapes and

bench notes taken at the suppression hearing.

7a

observed the college students drinking wine

and noticed what appeared to be drug

paraphernalia on a small drum beside them.

This particular surveillance was

terminated by the extinguishing of lights in

Defendants' home one-half hour after it

commenced. Neither officer could givea

certain or accurate description of "the pipe

or packet of rolling papers” allegedly seen on

a small drum one floor below them at a

distance of 45 feet. This they testified is the

sum total of all “drug paraphernalia” seen.

The next night, September 27, 1986 at

9:00 p.m., Officer Golden Returned alone to

the Stanley's third floor for additional

surveillance. The light was on in the middle

room second floer. This particular

observation lasted approximately 20 minutes.

Officer Golden, who has had minimal

experience in narcotics investigation, observed

one white male go fromthe middle bedroom

to the front room, retrieve a small box and

plug itinasocket inthe middle room. He

8a

testified he then observed the suspect

"pouring a white powder” on what he assumed

was an electronic scale. He further testified

that based on the statements of Officer

Colden, who originally received the

information from Mr. Stanley the week

before, on these two surveillances and that

the suspect left the middle room, Officer

Golden called for backup, rushed next door

and knocked on the door. Michael Savage

was arrested as he answered the door as the

sole occupant of 842 Penn Street. He was

arrested with awarrant. Officer Golden

made a search of the entire upstairs and

down of the house. After competing the

search and still without incident indicating

the threat of evidence being destroyed or

removed, three uniformed officers "secured"

the house for the following two hours while

awaiting Officer Golden's return with a

search warrant. Probable cause for the

search warrant was supported by the

aforesaid facts and items gathered at the

9a

initial warrantless search, incident toMr.

Savages's warrantless arrest.

Search warrant in hand, the arresting

officers then seized a quarter gram of

cocaine, one electronic scale with residue,

and various paraphernalia, as evidence for

criminally prosecuting Dpetendants for

Possession of a Controlled Substance with

Intent to Distribute, Possession of Drug

Paraphernalia, Criminal Conspiracy, and

Receiving Stolen Property.2 This appeal is

from our Order to Suppress these items of

evidence on the grounds that they are "fruit

of the poisonous tree” obtained pursuant to

an illegal search and seizure.

2As stated on the affidavit of probable

cause in support of warrants to arrest

Defendants, the following items were

confiscated fromdefendants' bedroom: a

glassine bag containing a white powd*"r, an

electronic scale with residue, several small

screens with residue, a Tylenol bottle

containing white powder, tally sheets, $195.00

cash, an ID for Paul Giannini, anda letter

addressed to Doug Voight, 842 Penn Street,

Bryn Mawr, PA. None of the white powder

was found to be a controlled substance. (See

Exhibit A attached.)

10a

II. ILLEGAL ARREST AND SEARCH

A. Warrantless Arrest

It is well established that in order for

information received from an informant to be

considered sufficient to support probable

cause it must first meet the minimum

standards of one or two Federal doctrines

followed in the Pennsylvania Courts: the

Aguilar-Spinelli test requires proof of

informant's reliability and a "substantial basis"

for the informant's knowledge of facts.

Aguillar v. Texas, 378 U.S. 108 (1964) and

Spinelli v. United States, 393 U.S. 410 (1969).

The “totality of the circumstances” appliesa

less rigid standard, but a minimum "a

sufficiency of details tocorroboratea

substantial basis for concluding probable

cause" must be present. Illinois v. Gates, 462

U.S. 213 (1983); See Com. V. Baker,

Pas. > S19 & 26 O82 19966).

This Court concluded that under either

mandate the informant in the case at bar

lla

previously unknown to police, and whose only

basis of knowledge was an unamplified visual

contact of what "looked like” drug use from

45 feet away, is not enough to satisfy the

minimum requirements for justification of a

Warrantless arrest and search. Commonwealth

v. Chandler, 505 Pa. 113, 477 A.2d 851 (184),

Commonwealth v. Monte, 459 Pa. 495, 329

A.2d 836 (1974).

Because the surveilling officers'

testimonies were filled with uncertainty as to

the description of paraphernalia, as to what

exactly they saw in the way of drugs and

their lack of experience, this Court concluded

that in these circumstances enough to leada

reasonable man to believe that a warrantless

arrest is justified,let alone the initial

warrantless search. Chandler, and Monte,

supra.

B. Unlawful Search Incident To a

Warrantless Arrest

The rule in Pennsylvania regarding

searches incident to valid arrest (assuming it

12a

is valid) follows the rule of Chimel v.

California, 395 U.S. 752 (1969) which limits

the scope of the search to the "area within

the immediate accessibility of the suspect"

with the officers' safety in mind (referred to

as the Chimel "“wingspan".) Absent any

exigent circumstances or reasonable

apprehension of the officers' own personal

safety the officers are limited to searching

only the area within the suspects immediate

control. Commonwealth v. Walker, 348

Pa.Super. 207, 501 A.2d 1143 (1985),

Commonwealth v. Curry, 343 Pa.Super. 400,

494A.2d 1146 (1985). The Commonwealth has

failedto prove a legitimate expectation on

the part of the arresting officers that

evidence would have been destroyed or

removed, or that their personal safety was in

danger or that anyone else was in this house

at this time and under these circumstances.

Officer Golden was therefore unjustified in

searching Defendants' entire home. Walker

and Curry, supra.

13a

In Pennsylvania the burden is upon the

Commonwealth to prove by preponderance of

the evidence that the search and seizure did

not violate the Fourth Amendment.

Commonwealth v. Cihylik, 337 Pa. Super. 221,

486 A.2d 987 at 989) 1985).

Officer Golden testified he observed no

other occupants. He observed no weapons

and none were found, during pre-arrest

surveillance or during the arrest procedures.

The Defendant was both polite and passive

—— being placed under arrest. Under these

circumstances there was no evidence of any

emergency requiring an immediate, unbridled

search. ie ae

It is not enough ie scneticenan

believes the facts he has are probable cause

for a search warrant. The people of this

state are constitutionally guaranteed an

independent determination of probable cause

by a neutral and detached magistrate. Both

the Fourth Amendment of these United States

and Article l, Section 8 of our Pennsylvania

iil

l4a

Constitution prohibit unreasonable searches

and seizures, Commonwealth v. Chandler, 505

Pa. 113, 477 A.2d 851 (1984) -- "When the right

of privacy must yield to the right of search

is, as a rule, to be decided by a judicial

officer, not by a policeman or government

agent." Id at 855, quoting Johnson v. United

States, 333 U.S. 10 (1948).

In the present case the arresting officer

testified that no other activity besides that

of Mr. Savage was observed that the officer

believed no other individuals were present.

Exigent circumstances exist when there

is a genuine emergency regarding the

destruction, consumption, or removal of

evidence so as to make it unreasonable to

require awarrant. Vale v. Louisiana, 399

U.S. 30 (1970).

From the facts presented this Court

believes that no exigent circumstances

existed, the officers had an opportunity to

get awarrant but didnot, and therefore

made a search and seizure of the residence in

15a

violation of Defendants' constitutional rights.

We further decline to hold that an arrest at

the front door can provide it's own exigent

circumstances so as to justify a warrantless

search of a Defendant's house. See,

Commonwealth v. Curry, 343 Pa. Super. 400,

494 A.2d 1146 (1985); CF, Commonwealth v.

Henkel, 306 Pa. Super. 346, 452 A.2d 759

(1982); See also Commonwealth v. Guyton,

230 Pa. Super. 168, 326 A.2d 913 (1974).

Ce Exclusionary Rule

The Exclusionary rules of the State of

Pennsylvania hold tainted evidence

inadmissible because of the illegal manner in

which it was obtained, regardless of whether

this illegality affects the reliability of the

proof. Commonwealth v. Anderson,

eee EES 2.28 2106 (2987),

Commonwealth v. Lovette, 498 Pa. 665, 450

A.2d 975 (1982). The purpose of the rule is

to deter unlawful police conduct and to

promote judicial integrity which is fulfilled

only if a determination of probable cause is

l6a

made before and not after the search.

Commonwealth v. Chandler, 505 Pa. 113, 477

A.2d 851 (1984).

However, Officer Golden, relying on his

Own experience and a "Haverford Township

Police Procedure", did conduct an

unreasonable search of Defendants' residence

under the pretense of safety. Under all the

credible evidence in all these circumstances

we conclude that the Golden search was an

attempt to support his affidavit of probable

cause for the warrant which in turn led to

the arrest of, and charges against, the

Defendants Paul Giannini and Douglas Voight.

A written affidavit of probable cause is

to insure a recorded accurate account of the

facts upon which the issuing authority must

rely. Commonwealth v. Chandler, supra, at

115. In this case we believe these facts were

gathered in violation of the laws of this

state. All evidence pursuant to that violation

must be excluded. Mapp v. Ohio, 367 U.S.

643 (1961); Chandler, supra.

17a

Without the fruits of the original illegal

search, the affidavit for a search warrant is

so lacking in indicia of probable cause as to

make the final search an unreasonable

intrusion into Defendants' privacy and

therefore unconstitutional. Vale v. Louisiana,

399 U.S. 30 (1970). Because of this illegality,

the Commonwealth's evidence against the

Defendants must be excluded. Commonwealth

v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980).

f

D. Dismissal of Charges

Without the physical evidence of drugs, 2

drug paraphernalia or stolen property,

suppressed as evidence due to the illegal

manner by which it was obtained, the

Commonwealth is without a case against

Defendants. We have determined after a

review of the entire record that without the

3 The only controlled substance found in

Defendants' room, and therefore intheir

constructive possession, were the residues

from the drug paraphernalia obtained during

the illegal search. The other white powders

confiscated from Defendants' room were found

to be legal substances not classifiedas

"controlled".

18a

suppressed evidence no evidence remains to

sustain the charges and as a result

Defendants should be discharged and the case

dismissed in the interest of judicial economy

and integrity of the judiciary system. See,

Commonwealth v. Poindexter, 484 Pa. 472, 399

A.2d 390 (1979).

In view of the aforesaid in the totality

of these circumstances and in addition thereto

the matter is dismissed as de minimis. See,

Commonwealth v. Jackson, 510 A.2d 1389 (Pa.

Super 1986); See also18 Pa.C.S.A. $312.

For the above reasons our June 20, 1987

Order suppressing the evidence and dismissing

the charges should be affirmed.

BY THE COURT:

Anthony R. Semeraro

19a

SUPREME COURT OF PENNSYLVANIA

Eastern District

Marlene F. Lachman, Esq. 468 City Hall

Prothonotary Phila., PA

Patrick Tassos 19107

Deputy Prothonotary (215)496-4600

November 4, 1988

Dennis C. McAndrews, Esquire

Assistant District Attorney

DISTRICT ATTORNEY'S OFFICE

Delaware County Courthouse

Media, PA 19063

RE: Commonwealth of Pennsylvania,

Petitioner v. Douglas Voight and Paul

Giannini,

No. 329 E.D. ALLOCATUR DOCKET 1988

Dear Mr. McAndrews:

This is to advise you that the following

Order has been endorsed on your Petition for

Allowance of Appeal, filed inthe above

captioned matter:

"October 31, 1988.

Denied.

Per Curiam."

Very truly yours,

Marlene F. Lachman,

Esquire

Prothonotary

/mz

ec: Jon J. Auritt, Esquire

APPENDIX "“"C"