Com. v. Cleckley

• Decision Date: 23 August 1999
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Joseph M. CLECKLEY, Jr., Appellant.
• Court: Pennsylvania Supreme Court

738 A.2d 427

558 Pa. 517

COMMONWEALTH of Pennsylvania, Appellee, v. Joseph M. CLECKLEY, Jr., Appellant.

Supreme Court of Pennsylvania.

Submitted December 8, 1998.

Decided August 23, 1999.

John J. Petrush, Jr., San Francisco, CA, Peter Rosalsky (amicus), for Joseph M. Cleckley, Jr.

Theresa Ferris-Dukovich, Ahmed Aziz, Beaver, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

CAPPY, Justice.

Appellant contends that a consensual search should be deemed valid under Article I, Section 8 of Pennsylvania Constitution only where it can be shown that the person subject to the search knew that he or she had the right to refuse such consent. For the reasons that follow, we disagree and, accordingly, affirm the decision of the Superior Court.

On December 23, 1995, Officer John Deluca of the Borough of Koppel Police Department went to Phil's Inn with an arrest warrant for one Andrew Pounds. Upon being arrested, Pounds informed the officer that appellant, who was inside the bar, had just sold drugs to Pounds' brother. He also told the officer that appellant had the drugs in a change purse that bore the name "Joe."

The officer went back into the bar and located appellant standing next to Ralph Pounds, brother of Andrew Pounds. After asking appellant to go outside with him, the officer informed appellant that he had been accused of selling drugs in the bar. When the officer then asked appellant if he could "pat him down," appellant responded, "Sure, I don't have anything on me." It appears that, at that time, appellant visibly possessed in his left hand a change purse which the officer took and unzipped. Inside the purse was some crack cocaine and ninety-eight dollars ($98.00).

Appellant was ultimately charged with possession¹ and possession with intent to deliver.² Prior to trial, appellant filed a motion to suppress the cocaine. Finding that the search of appellant was consensual, the trial court denied the motion. Following a trial by jury, appellant was convicted of possession. On appeal, the Superior Court affirmed the judgment of sentence. We granted appellant's petition for allowance of appeal in order to address the issue of whether in consensual search cases, the courts should employ a "waiver" analysis and not simply a "voluntariness" analysis in determining whether under Article I, Section 8 of the Pennsylvania Constitution the consent was valid.³

Our review of suppression rulings is circumscribed. Where the record supports the factual findings of the court below, we may reverse the suppression ruling only if the legal conclusions drawn from those facts are in error. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Under both the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, a search such as that at issue here, which is conducted without a warrant, is deemed to be per se unreasonable. Commonwealth v. Williams, 547 Pa. 577, 692 A.2d 1031 (1997). Certain specifically established exceptions, one of which is a valid consent may, however, render an otherwise illegal search permissible. Commonwealth v. Slaton, 530 Pa. 207, 608 A.2d 5, 8-9 (1992). It is the state's burden to prove consent. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978). This court, as well as the United States Supreme Court, has long adhered to the principle that for purposes of the Fourth Amendment, consent must have been given voluntarily. See Commonwealth v. Smith, 470 Pa. 220, 368 A.2d 272, 276 (1977)

and cases cited therein. At issue in the instant matter is whether, under Article I, Section 8 of the Pennsylvania Constitution, this test of "voluntariness" should include as well a finding that the subject of the search knowingly and intelligently waived his or her right to refuse to consent.

Appellant acknowledges that the United States Supreme Court, in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), decided this precise issue for Fourth Amendment purposes adversely to the position he is here espousing. He maintains, however, that given the enhanced privacy rights recognized under Article I, Section 8 of our state constitution, we should adopt a "constitutional waiver" standard for determining whether a consensual search is valid in Pennsylvania. According to appellant, a waiver standard similar to that adopted by the United States Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)⁴, is appropriate here since by consenting to a warrantless search, one is waiving the right to be free from a warrantless search. Appellant argues, at certain points in his brief, that the police should be required to expressly advise the subject of the search that he or she has the right to refuse the search. In Schneckloth, the Court held that where the subject of the search is not in custody and the state purports that the search was consensual, the Fourth and Fourteenth Amendments dictate that, to be valid, the consent be voluntarily given and not the product of coercion or duress. Significantly, the Court held that a consent search is valid if it meets the test of "voluntariness." That test involves consideration of whether the confession was the product of an essentially free and unconstrained choice. 412 U.S at 225,93 S.Ct. 2041. According to the Court, "voluntariness" is a question of fact to be determined from the totality of the circumstances and while knowledge of the right to refuse consent is a factor to consider in determining whether consent to search was voluntarily and knowingly given, it is not dispositive. In so holding, the Court reasoned that such a requirement would not only be impractical but it would also hamper legitimate police investigation. Two competing concerns—the legitimate need for consent searches and the assurance that the subject of the search not be coerced—dictated the Court's decision. Id. at 227-28, 93 S.Ct. 2041.

The Court in Schneckloth explicitly rejected the idea of applying the Zerbst "waiver" analysis to consent searches, essentially finding that analysis appropriate to preserving those constitutional rights guaranteed a criminal defendant in order to assure a fair trial, but not to those rights encompassed in the Fourth Amendment. Appellant nevertheless maintains that our case law supports the notion that under an independent state analysis, we would require an intelligent waiver. In support thereof, he cites to this court's decisions in Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203 (1994) and Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996).⁵

In Gibson, the police arrived at an apartment building to investigate a party in a second floor apartment. By that time, the party in the second floor unit was already over. The police proceeded to the first floor apartment which was rented by Steven Fifoot. There were no noises emitting from this apartment nor were there people entering and leaving this apartment. Indeed, the police did not even possess knowledge of a party or underage drinking at this apartment. Nevertheless, one of the officers engaged Mr. Fifoot in conversation in the foyer of the apartment while the other two officers entered the apartment. No warrant had been obtained permitting entry into any unit in the building. The appellants, who were guests at this apartment, were ultimately cited for underage drinking.

On appeal to this court, appellants maintained that the police conducted an illegal search of this apartment and, therefore, all evidence obtained during that search should be suppressed. One of the contentions of the Commonwealth on appeal was that the owner of the unit, Mr. Fifoot, had consented to the search of the apartment. In rejecting that contention, this court, after noting that consent can validate an otherwise illegal search only where that consent is unequivocal, specific, and voluntary, stated that:

It is only where there is an intentional relinquishment or abandonment of a known right or privilege that an effective waiver can be found. United States v. Blalock, 255 F.Supp. 268 (E.D.Pa. 1966). The subject of the search must be made aware of his rights against a warrantless search for a waiver to be intelligent. Id.

Gibson, 638 A.2d at 207. It is this language in Gibson on which appellant in the instant matter relies. Significantly, Blalock was decided prior to Schneckloth, and thus, any implication therein which would dictate a requirement that the subject of a search must be specifically warned that he or she has a right to refuse consent to the search is of limited value. Moreover, appellant takes the quoted language out of context. Significantly, the Gibson court went on to hold that the search there could not be justified on the theory of consent since not only did the police fail to announce that it was their intent to search the apartment, but also because Mr. Fifoot never expressly consented to the police entry. Id. In other words, there was no consent to even evaluate.

Similarly, in Melendez there was no evidence that the defendant expressly consented to police entry into her home. In that case, police had Melendez's house under surveillance and were in the process of applying for a search warrant when Melendez was seen leaving her home. Police immediately stopped the vehicle which she was driving, removed her from the vehicle, and searched her purse whereupon they discovered a .25 caliber handgun, a large amount of cash and a drug tally sales sheet. The police then informed Melendez that they were getting a search warrant for her home and asked that she accompany them to her home whereupon they then gained entry to the home by using her keys.

In rejecting the Commonwealth's contention that Melendez had consented to the search of her home, this court relied upon the fact that...