Com. v. McCree

• Decision Date: 31 May 2007
• Citation: 924 A.2d 621
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Henry McCREE, Appellant.
• Court: Pennsylvania Supreme Court

924 A.2d 621

COMMONWEALTH of Pennsylvania, Appellee, v. Henry McCREE, Appellant.

Supreme Court of Pennsylvania.

Argued October 17, 2005.

Resubmitted April 13, 2007.

Decided May 31, 2007.

Karl Baker, Esq., Karl Lawrence Morgan, Esq., Defender Association of Philadelphia, Philadelphia, for Henry McCree.

Hugh J. Burns, Jr., Esq., Peter Carr, Philadelphia District Attorney's Office, Philadelphia, for Commonwealth of Pennsylvania.

BEFORE: CAPPY, C.J., and CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice EAKIN.

We granted allowance of appeal to clarify the standard for the plain view exception to the warrant requirement.

On September 24, 2002, undercover police officer Stacey Wallace was investigating illegal sales of prescription drugs at 700 West Girard Avenue in Philadelphia. At 8:55 a.m., she came in contact with a man identified as "Boyer." Officer Wallace asked Boyer if he had any pills for sale; Boyer indicated he did not, and that he needed to wait for a friend to get the pills. Boyer left the scene, returned 15 to 20 minutes later, and handed Officer Wallace eight Xanax¹ pills. Officer Wallace handed Boyer a pre-recorded $20 bill and asked Boyer if he could get her more pills. Boyer indicated he could, and Officer Wallace handed him a pre-recorded $10 bill. Boyer walked to a blue Pontiac, sat in the passenger's seat, and spoke to the person sitting in the driver's seat. Officer Wallace notified back-up officers that she believed a narcotics sale was in progress in the vehicle.

At 9:15 a.m., police officer Jeffrey Cujdik² and his partner were directed to stop a man sitting inside a blue Pontiac. Officer Cujdik approached the driver's side of the Pontiac, and his partner approached the passenger's side. Officer Cujdik observed appellant, who was sitting in the driver's seat, shove an amber container under a seat cushion on top of the driver's seat. Officer Cujdik believed the container was a pill bottle. Officer Cujdik asked appellant to step outside the vehicle, which appellant did. Officer Cujdik reached under the driver's seat cushion and recovered the bottle containing 52 blue pills, later determined to be Xanax.

Officer Cujdik took appellant to the back of the Pontiac. The driver's side front door was left open. Officer Cujdik walked to the door and saw two more pill bottles in the door pocket. Officer Cujdik removed them and found 12 OxyContin³ pills in one bottle and 25 Percocet⁴ pills in the other. All three pill bottles bore appellant's name.

Appellant filed a pre-trial motion to suppress the drugs. The trial court denied relief, and the matter proceeded to a bench trial; appellant was convicted of possession with intent to deliver Xanax.⁵ The court found appellant not guilty of conspiracy and possession of Xanax. Appellant was sentenced to nine to 23 months imprisonment, followed by two years of reporting probation.⁶ Appellant appealed, arguing the trial court improperly admitted all three pill bottles into evidence, and that there was insufficient evidence to sustain his conviction.

In its Pa.R.A.P.1925(a) opinion, the trial court explained the officers were justified in approaching the vehicle and had probable cause to arrest Boyer; thus, they were at a lawful vantage point when Officer Cujdik saw appellant secrete the Xanax pill bottle under his seat cushion. The plain view exception to the warrant requirement allows the police to seize objects that are viewed from a lawful vantage point where the incriminating nature of the object is immediately apparent. Trial Court Opinion, 7/2/03, at 6 (citing Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993 (1999); Commonwealth v. Ballard, 806 A.2d 889 (Pa.Super.2002)). The court reasoned:

When considering the totality of the circumstances, it is clear that Officer [Cujdik] had probable cause to believe that the objects he saw were incriminating in nature. The area was well known for pill sales. There were complaints about a pharmacy in the area. Officer [Cujdik] was aware of Officer Wallace's encounter with Boyer and the direct sale that took place between them. He was also aware of the statement by Boyer telling Officer Wallace that he could get more pills and would be right back just prior to entering [[a]ppellant's] vehicle. All of these facts, along with Officer [Cujdik's] experience, make it clear that upon sighting the . . . amber bottle he would have found them immediately incriminating.

Id., at 6-7.

Affirming in a published decision, the Superior Court explained the plain view exception to the warrant requirement under the Fourth Amendment to the United States Constitution, as discussed in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), sets forth the following standard for application of the exception:

It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view; its incriminating character must also be "immediately apparent." . . . Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.

Commonwealth v. McCree, 857 A.2d 188, 190 (Pa.Super.2004) (quoting Horton, at 136-37, 110 S.Ct. 2301). This standard, therefore, contains three prongs: (1) the police must be at a lawful vantage-point; (2) the incriminating character of the object must be immediately apparent; and (3) the police must have a lawful right of access to the object. The court suggested that although this Court adopted the standard announced in Horton, see Commonwealth v. Graham, 554 Pa. 472, 721 A.2d 1075 (1998); Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992), subsequent statements of the standard eliminated its third prong, which requires the police to have a lawful right of access to the object. See Petroll, supra; Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043 (1995). Observing that such elimination occurred without express acknowledgement, the Superior Court felt constrained to apply the standard as stated in Petroll and the later case of Commonwealth v. Colon, 777 A.2d 1097 (Pa.Super.2001); neither referenced the third prong. More specifically, the court stated that Petroll provides there can be no reasonable expectation of privacy for an object in plain view, and Colon suggests that, while the police might be prohibited from searching a vehicle once the occupants have been removed, they may nonetheless seize contraband that is in plain view inside the vehicle. See McCree, at 191 (quoting Commonwealth v. Clark, 802 A.2d 658, 660 (Pa.Super.2002)).

Turning to the facts, the Superior Court emphasized the trial court's finding that Officer Cujdik saw the Xanax pill bottle in plain view, and reasoned that appellant's efforts to hide it under his seat cushion excused the need to secure a search warrant. Id. The court found the incriminating nature of the Xanax bottle was immediately apparent in light of the surrounding circumstances; thus, it held the Xanax bottle fell within the plain view exception. Id. The court also found the police were at a lawful vantage-point when they saw the two bottles in the door pocket, and the incriminating nature of those bottles was likewise immediately apparent. Id., at 192.

We granted allowance of appeal to review the narrow issue of whether the Superior Court improperly disregarded Graham, supra, and McCullum, supra, when it opined our decision in Petroll, supra, allowed police to enter the Pontiac without a warrant.⁷

Both the Fourth Amendment to the United States Constitution⁸ and Article I, § 8 of the Pennsylvania Constitution⁹ protect the people from unreasonable searches and seizures. In the Interest of D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (2001). The Fourth Amendment and Article I, § 8 have long been interpreted to protect the people from unreasonable government intrusions into their privacy. United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496, 499 (1978). "The reasonableness of a governmental intrusion varies with the degree of privacy legitimately expected and the nature of the governmental intrusion." Shaw, at 499 (collecting cases).

The similarities in language of the Fourth Amendment and Article I, § 8 do not demand identical interpretation of the two provisions. Commonwealth v. Waltson, 555 Pa. 223, 724 A.2d 289, 291 (1998). Article I, § 8 can provide no less protection than what the Fourth Amendment requires, but it may establish greater protections than the Fourth Amendment. Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 771-72 (1996). Article I, § 8 has been held to create an implicit right to privacy which extends to areas where one has a "reasonable expectation of privacy." Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81, 87 (1988). The notion of privacy in Article I, § 8 is greater than that of the Fourth Amendment. Waltson, at 292 (citing Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 899 (1991) ("Article I, [§] 8 . . . may be employed to guard individual privacy rights against unreasonable searches and seizures more zealously than the federal government does under the [United States] Constitution . . . .") (emphasis in original)). Thus, Pennsylvania courts, in comparison to federal courts, have given greater weight to an individual's privacy interests when balancing the importance of privacy against the needs of law enforcement. Commonwealth v. White, 543 Pa. 45, 669 A.2d 896, 902 (1995); see also Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457, 468 (1983) ("Article I, [§] 8...