Com. v. Melendez

• Decision Date: 22 May 1996
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Patricia MELENDEZ, Appellant.
• Court: Pennsylvania Supreme Court

Page 226

676 A.2d 226

544 Pa. 323

COMMONWEALTH of Pennsylvania, Appellee, v. Patricia MELENDEZ, Appellant.

Supreme Court of Pennsylvania.

Argued Dec. 4, 1995.

Decided May 22, 1996.

Leonard N. Sosnov, Philadelphia, for Patricia Melendez.

Catherine Marshall, Joan Weiner, Philadelphia, for Com.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY and CASTILLE, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

Patricia Melendez was convicted by a jury of possession of cocaine with intent to deliver and possession of drug paraphernalia in violation of the Controlled Substance, Drug, Device and Cosmetic Act, ¹ criminal conspiracy, ² and violation of the Uniform Firearms Act. ³ She was sentenced to eleven and one half years to twenty-three years in prison. On appeal, Superior Court affirmed the convictions, with one judge dissenting. We granted allocatur in order to address Melendez's claims that police conducted improper searches and seizures of inculpatory evidence which should have been suppressed at trial.

On November 9, 1990 Philadelphia police began a surveillance of 5155 Pennway Street. This was the culmination of a three-week investigation into possible drug activity at this address. Police at the scene were in communication with an officer at another location who was typing up an application for a search warrant of the premises. About an hour after the surveillance began, Melendez left the house on Pennway Street, got in an automobile, and drove away. Police then stopped her, removed her from the car, and searched her purse, where they found a .25 caliber handgun, a large amount of cash, and what police describe as a drug tally sales sheet.

Police had observed no criminal activity on the part of Melendez, but stopped and searched her because she was a suspect in a felony investigation. Police then transported Melendez back to her house, where they used her keys to gain entrance. Upon entering the house, police observed Melendez's co-defendant holding a bag of cocaine. Police then secured the house and its occupants and waited for communication as to whether or not the search warrant had been approved. For approximately an hour, police waited at the scene with both occupants of the dwelling, but did not conduct a search. Finally, the warrant arrived and they searched the house, finding drugs, cash and other evidence which was used to obtain the convictions.

Although Melendez raises a number of issues, because of our disposition of the case, we limit our discussion to the questions of whether under the United States and Pennsylvania constitutions (1) Melendez was improperly stopped and searched, requiring suppression of any evidence seized as a result of the search and (2) whether the warrantless entry of Melendez's home was illegal, requiring the suppression of evidence seized from the home. We answer both questions in the affirmative.

The Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Art. I, Sec. 8. The Fourth Amendment 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.

U.S. Const.Amend. 4. Under both federal and state provisions, people are to be secure in their persons against "unreasonable searches and seizures." The issue in the first instance is whether Melendez was unreasonably stopped and searched when she attempted to drive away from her residence.

In Commonwealth v. Rodriquez, 532 Pa. 62, 71, 614 A.2d 1378, 1382 (1992), this court stated:

In accordance with the protections afforded our citizens under Article I, Section 8, we have recognized only two instances where police may "seize" an individual[;] both require an appropriate showing of antecedent justification: first, an arrest based upon probable cause, Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987); second, a 'stop and frisk' based upon reasonable suspicion, Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).

In sum, there are two circumstances in which warrantless seizures of a person are constitutionally permissible. The first is where police have probable cause to believe that a crime is being or is about to be committed. The second is that a limited seizure may be effected where there is a reasonable police belief that criminal activity is afoot. Hicks, 434 Pa. at 160, 253 A.2d at 279, interpreting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In this case, Melendez was not engaged in any activity at the time she was stopped which would cause a person of reasonable caution to believe that she was then engaged in criminal conduct. ⁴ The brief for the Commonwealth concedes that detectives stopped Melendez because "if the suspect was at large when the impending search warrant was executed she might never be apprehended." The fact that Melendez might avoid arrest, however, does not constitute probable cause to arrest her, for at that point, there was no probable cause to believe that Melendez was committing or about to commit a crime.

The remaining possibility for a legal seizure of the person of Melendez is that the stop constituted a stop and frisk under the Terry-Hicks line of cases. However, unless police have "specific and articulable facts" which lead them to suspect criminal activity, Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906, they may not stop and search any person without a warrant. Since the Commonwealth offers no "specific and articulable facts" here, there was no justification for even the limited intrusion of a Terry stop. ⁵

In an apparent attempt to avoid this conclusion, the trial court stated that "police stopped Ms. Melendez for investigation...." However, the "investigation" rationale does not supply the articulable-basis-for-suspicion requirement of Hicks and Terry. No person may be stopped for "investigation" in the absence of an articulable reason to suspect criminal activity, and the record contains no indication that police had any basis to believe that Melendez was engaged in any criminal activity at the time of the stop. Instead, police had only the suspicion that Melendez was involved in illegal drug sales at a time and location wholly separate from the place she was stopped. Terry stops, however, are designed to address immediate suspicions of current illegal conduct. ⁶ Concerns that Melendez may have been engaged in illegal activity in her home were properly addressed by the application for a search warrant and provide no basis for a Terry stop. ⁷

Superior Court justified the warrantless stop and search in this case by reference to "exigent circumstances." Making reference to Commonwealth v. Peterson, 408 Pa.Super. 22, 596 A.2d 172 (1991), Superior Court stated the applicable law as follows:

It is well-settled that exigent circumstances excusing the warrant requirement arise where the need for prompt police action is imperative.... Whether exigent circumstances exist depends on an examination of all of the surrounding circumstances in a particular case.... [T]he inherent necessities of the situation at the time must be scrutinized.

Slip Op. at 10. Superior Court then proceeded to determine that the present case involved exigent circumstances:

failure to halt the vehicle of appellant and detain her would have set the stage for her to return to the premises during the execution of the search warrant, observe the police activity at the premises, and been thereby impelled to flight.... Similar exigent circumstances justified the warrantless entry of the residence of appellant since the failure of appellant to arrive at her destination at a particular time or within a particular period could well have set in motion, by pre-arrangement among the conspirators or by happenstance, circumstances which her co-defendant would have viewed as so untoward as to necessitate destruction or removal of contraband from the scene.

Slip Op. at 11. Although Superior Court finds the exigencies of this case "quite compelling," we disagree.

Our disagreement with Superior Court's determination that exigent circumstances justified the search is based on our view that there was no "imperative" need for police action in this case. There is no evidence of record that any of the "untoward" eventualities Superior Court mentions actually existed, and if the police created a danger that their surveillance might be discovered because they stopped Melendez's car, they can hardly be allowed to rely on that to justify a warrantless intrusion. Had the police simply waited for the search warrant, they could have searched the dwelling and avoided the problems of the present case. Had contraband been found during the search, police then could have arrested Melendez on the basis of this evidence. There were no exigent circumstances.

In sum, the stop, and therefore the search, were illegal, for the stop was grounded neither on probable cause nor the less stringent requirements of Terry, and the warrant requirement was not obviated by the existence of exigent circumstances. It is our conclusion, therefore, that the items seized and introduced into evidence must be suppressed under Art. I, Sec. 8 of the Pennsylvania Constitution.

Next we address the claim that the search of the premises was illegal. Superior Court justified the search because Melendez consented to return with the police to her home and to their using her keys to open the door and enter. Even if Melendez had not...