Com. v. Dugger

• Decision Date: 09 January 1985
• Citation: 506 Pa. 537,486 A.2d 382
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Billy G. DUGGER, Appellee.
• Court: Pennsylvania Supreme Court

Page 382

486 A.2d 382

506 Pa. 537

COMMONWEALTH of Pennsylvania, Appellant, v. Billy G. DUGGER, Appellee.

Supreme Court of Pennsylvania.

Argued April 9, 1984.

Decided Jan. 9, 1985.

James R. Freeman, Dist. Atty., Stuart Suss, Asst. Dist. Atty., for appellant.

Andrew S. Wade, West Chester, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

McDERMOTT, Justice.

In this appeal review is sought from an order of Superior Court, en banc, affirming the Court of Common Pleas of Chester County. The trial court granted appellee's motion to suppress evidence seized after officials searched appellee at the Chester County Farms Prison. In suppressing the evidence the trial court held no probable cause existed for the search and appellee did not knowingly and voluntarily consent to the search.

Superior Court affirmed the suppression order, agreeing appellee had not consented to the search. They did not accept the trial court determination, however, that probable cause was necessary to conduct a search, finding reasonable suspicion would suffice. The Superior Court also made an independent determination that it could no longer "accept" an appeal from an order suppressing evidence following the Commonwealth's good faith certification that the prosecution will be terminated or substantially handicapped. Commonwealth v. Dugger, 311 Pa.Super. 264, 276, 457 A.2d 877, 883 (1983). The Superior Court held that an order suppressing evidence is appealable only when it is apparent from the record that the order terminates or substantially handicaps the prosecution. The Commonwealth, appellant herein, petitioned this Court for appeal and we granted allocatur. After consideration, we reverse.

The facts leading to this case are as follows: On June 22, 1980, Mary Ellen Stamper, an employee of Chester County Police Radio, received a telephone call. The caller, a woman who refused to identify herself, informed Miss Stamper that appellee, Billy Dugger, was on his way from Delaware to visit his brother Eddie at the Chester County prison. The woman further explained that appellee would be attempting to deliver marijuana to his brother and that the marijuana would be hidden in balloons on appellee's person. Following this communication, Miss Stamper called the prison officials with the details.

Sometime between 11:00 and 11:30 that morning, appellee arrived at the prison and signed in for a visit. Appellee was met in the reception area of the prison by a Sergeant Phillip Walker and another institution officer. At the officers' request appellee accompanied them to a maintenance shop inside the prison where he would be afforded privacy during a search. ¹

Appellee was at this point told he was suspected of concealing contraband on his person. He was further informed that he would have to submit to a strip search upon entering the institution and if he willingly submitted, he would be searched. Appellee was also told that if he refused, he would have to leave. Appellee agreed to the search and proceeded to remove his wallet, empty his pockets, and take off his shirt. One of the correctional officers then asked appellee to take off his shoes. After doing so, three balloons, each containing marijuana were recovered.

Appellee was arrested and charged with possession of a controlled substance ², possession of a controlled substance with intent to deliver, ³ and introduction of contraband ⁴. On October 22, 1980, a hearing was held on appellee's pre-trial motion to suppress the marijuana. As stated, the trial court ordered that the evidence be suppressed, a decision that the Superior Court affirmed.

We first address the issue of the search of the prison visitor in this case. Prison authorities conducted the instant search pursuant to the Act of May 11, 1911, P.L. 274, § 4, 61 P.S. § 384, which reads:

The warden or superintendent of the prison is hereby authorized to search or to have searched any person coming to the prison as a visitor, or in any other capacity, who is suspected of having any weapon or other implement which may be used to injure any convict or person, or in assisting any convict to escape from imprisonment or any spirituous or fermented liquor, drug, medicine, poison, opium, morphine or any other kind of character of narcotics, upon his person.

The trial court in construing this statute held that prison authorities must apply the probable cause standard when conducting searches pursuant to the statute. The Superior Court rejected this interpretation stating:

It is only necessary to read into the Act, first, that the person must be "reasonably suspected" of having narcotics; second, that after being informed that before he may make his visit he must submit to a search, the person must consent to be searched; and third, that the search that the warden then conducts must be a reasonable search.

Commonwealth v. Dugger, 311 Pa.Super. at 302-303, 457 A.2d at 897.

We agree with the Superior Court's statement and we find no constitutional prohibitions against legislatively enacting a reasonable suspicion standard for prison searches.

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). A prison setting involves unique concerns and security risks, thereby necessitating more leeway in allowing searches than might be found in a non-penal environment. See Gettleman v. Werner, 377 F.Supp. 445, 451 (W.D.Pa.1974). A visitor comes to a prison voluntarily. If he or she refuses to be searched they may leave. If that person voluntarily consents to a search and illegal contraband is found, then the Big House may be his home.

While we agree with the Superior Court's reasonable suspicion standard, we must reject their determination that appellee's consent was not knowing and voluntary. Review of the record reveals appellee was informed that he was suspected of carrying contraband, and that if he wished to visit his brother he would have to submit to a strip search. He was further informed that if he did not wish to be searched he would have to leave. Appellee responded by emptying his pockets and removing his shirt. The standard of voluntary conduct which the suppression court was obliged to apply was one of non-coerced action. Appellee clearly demonstrated such with his responses.

The next issue to be resolved here concerns the question of when the Commonwealth may appeal an unfavorable suppression order.

As says President Judge Spaeth the Superior Court has been "thrashing about" upon the question of when the Commonwealth may appeal an unfavorable suppression order. They have indeed.

"Thrashing about" is probably as good a raw description of the judicial process as any, and the process has undeniable merit. Especially, since our Superior Court is a whole world of knowledge and experience, their thinkings are a rich fund of advices and suggestions, as sought as they are welcomed. Because, however, the results of the process, by whomsoever done, are not always as good as the doing, we have set ascending choirs of thrashers, each nurtured by the other and each with opportunity and limits. Recognizing that endemic strain of fallibility in all, we have, nonetheless, agreed there must be a final thrashing. For better or for worse this Court grinds the thrashings. Maintaining that arrangement is not always easy; we are not always clear, the best of our skillful brethren can misunderstand our point, and we are sometimes clearly wrong. Clarity can hopefully be made clearer still, misunderstandings we can correct, and with the help of our brethren we can correct our errors. We rely on our brethren not only to correct and inform us, but to countenance our duties and respond by enforcing our directives. The balance cannot be maintained, if our brothers, ex proprio motu, correct, alter or change our directives or disobey our plain prescriptives.

In the instant case, as premised by President Judge Spaeth, there appears a slippage in the balance that might presage a gap of wider significance.

President Judge Spaeth, speaking for the en banc panel, seems to say, and one hopes it is not a fixed opinion, that as an appellate court the Superior Court is not required to accept an appeal without questioning its propriety. "Instead," he says, "as an appellate court we must do what the Supreme Court did, examine the record and decide for ourselves whether the suppression order terminates or substantially handicaps the prosecution." Id. 311 Pa.Super. at 276, 457 A.2d 883. Such a view may have its relevance in some circumstances, but it is totally untenable when the Superior Court, an intermediate appellate court, is directed by this Court to hear an appeal. The Superior Court when directed to hear an appeal is required to do so, under the circumstances we direct. ⁵ They are not relieved of that duty because this Court chooses for its own reasons, to accept or deny an appeal. Their duty remains, until specifically directed otherwise. The reliance on our brief opinion in Commonwealth v. Hill, 497 Pa. 230, 439 A.2d 1153 (1982) as a sub silentio, overruling of Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), is a misapprehension of both that case and the duties of the Superior Court.

Because we disposed of a case as we did in Hill is not a warrant to obviate the procedure we have established to present the appeal to the Superior Court. There is a grave and profound difference between our direction to the Superior Court to hear an...