Com. v. Rodriquez

• Decision Date: 29 September 1989
• Citation: 564 A.2d 174,387 Pa.Super. 271
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Joanne RODRIQUEZ, Appellant. 359 HSBG. 1988
• Court: Pennsylvania Superior Court

Page 174

564 A.2d 174

387 Pa.Super. 271

COMMONWEALTH of Pennsylvania, Appellee, v. Joanne RODRIQUEZ, Appellant.

359 HSBG. 1988

Superior Court of Pennsylvania.

Argued April 19, 1989.

Filed July 24, 1989.

Reargument Denied Sept. 29, 1989.

Robert B. Evanick, Public Defender, York, for appellant.

Janice M. Gottshall, Asst. Dist. Atty., York, for Com., appellee.

Before ROWLEY, POPOVICH and JOHNSON, JJ.

POPOVICH, Judge:

This case involves an appeal from the judgment of sentence (eight to twenty-three months imprisonment) for possession with intent to deliver cocaine by the appellant, Joanne Rodriquez. ¹

On appeal, the appellant's argument centers upon the lower court's denial of her motion to suppress evidence removed from her purse during a drug raid of her apartment by police.

In such a context, we are required to consider only the evidence of the appellee (herein, the Commonwealth), and so much of the evidence of the appellant (herein, the defendant) which, as read in the context of the record as a whole, remains uncontradicted. Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211, 1212 (1986). So viewed, the record indicates that on July 14, 1987, a confidential informant advised York City Police Lieutenant G. Edward Flanagan that a "drug vending operation" was taking place at 405 South George Street, and that it was being carried on by a Puerto Rican female.

The police's efforts to make a controlled buy on July 14th proved unsuccessful. However, the following evening, at approximately 1:00-1:15 a.m., the same informant told the police: "... they were again selling drugs at that location."

The police drove the informant to 405 South George Street to make a drug purchase with $25.00 advanced by the authorities. When the informant returned from the exchange, he gave police a packet which was field-tested (using the Cobalt Thiocyanate kit) and found to be cocaine. He also proceeded to give the police a detailed physical description of the male individual who sold him the drug and that there were six to seven people in the apartment. It was at this point that the informant stated to the police that the group at 405 South George Street was leaving "to go to a speakeasy ... to get rid of the solid drugs."

Lieutenant Flanagan gathered other officers "as quickly as possible" and told them about the drug purchase from a Puerto Rican male (by the name of "Cheeco") and that there was a Puerto Rican female living at the apartment who also might have been selling drugs.

Once at the scene, Lieutenant Flanagan and another officer stationed themselves at the back door of the apartment, while Officers Ronald Mehring and James MacBride were to approach the apartment from the front. According to Officer Mehring, as he walked toward the apartment, he saw three Hispanic females standing on the steps of the apartment entrance. No sooner had the two officers reached the steps than Officer MacBride caught a packet (containing what appeared to be a drug) thrown from the apartment window. As told by Officer Mehring:

Then [he] asked if anyone lived there. [The appellant] indicated that she did. And [he] ushered the three Hispanic females into the house. It wasn't until after [they] had walked over where the door would shut that [he] saw a pocketbook laying [sic] on the steps there. Since [he] was ushering the three Hispanic females inside, [he] figured it belonged to one of them. [He] picked it up.

Once inside the house, [he] asked whose pocketbook it was. [The appellant] indicated it was her pocketbook.

He searched it for possible weapons. [His] intention was to return the pocketbook to [the appellant]. There were no weapons in it, but [he] found the drugs.

Specifically, [he] found a plastic bottle which had the [appellant's] name and a pharmacy on it and contained four aluminum packets with a white substance in each packet.

The content of the plastics tested positive for cocaine, and various denominations of money were also in the pocketbook.

The police gained entry into the apartment, both through the rear and front doors, by kicking the doors. This was preceded by a knock and announcement of the police's identity.

At the suppression hearing, it was the appellant's recollection that she was not asked if she lived at 405 South George Street until well after her arrest while she was at the police station. Further, she claimed that the police forced her into the apartment at gun point, a matter about which both Officers Mehring and MacBride stated they could not recall if such were the case. However, at trial, Officer Mehring testified he picked up the appellant's purse with his right hand and in his left hand he had a flashlight. As he stated: "So on that basis alone, I would state that my gun was not drawn." ²

Following the denial of the appellant's motion to suppress, a non-jury trial took place wherein the preceding information was presented. Additionally, the Commonwealth's expert (York City Police Officer John Daryman) testified that, in his opinion, the nine individually wrapped glassine packets of cocaine seized from the appellant's purse were consistent with the selling of drugs and not merely possession for one's use. This was buttressed by the seizure of a letter from the appellant's purse containing names on the back, which were recognizable to the witness as individuals involved with drugs from the South George Street area and whose names were kept, in his opinion, by one to whom money was owed for the sale of drugs.

A verdict was returned finding the appellant guilty as charged. A sentence was imposed, post-trial motions were denied and an appeal to this Court was perfected.

The issues raised by the appellant, when synthesized, challenge her "seizure" and the subsequent "search" of her purse incident to a warrantless search of her apartment.

As a starting point, we note that the warrant requirement is an important check upon the power of the State to subject individuals to unreasonable searches and seizures and is not to be highly disregarded. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). The exceptions to the Fourth Amendment requirement have been oft-stated and consist of a consensual search, a search incident to an arrest and exigent circumstances. United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).

In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the Supreme Court discussed the Fourth Amendment and exceptions to its warrant requirements:

These [exceptions to the warrant requirement] have been established where it was concluded that the public interest required some flexibility in the application of the general rule that a valid warrant is a prerequisite for a search. Thus a few "jealously and carefully drawn" exceptions provide for those cases where the societal costs of obtaining a warrant, such as a danger to law officers or the risk of loss or destruction of evidence, out-weigh the reasons for prior recourse to a neutral magistrate.... But because each exception to the warrant requirement invariably impinges to some extent on the protective purpose of the Fourth Amendment, the few situations in which a search may be conducted in the absence of a warrant have been carefully delineated and "the burden is on those seeking the exemption to show the need for it." Moreover, we have limited the reach of each exception to that which is necessary to accommodate the identified needs of society.

442 U.S. at 759, 760, 99 S.Ct. at 2590, 2591 (Citations omitted).

In the instant case, the police had their informant make a controlled buy of cocaine from the South George Street address. At the completion of the transaction, the police were advised by the informant that the group at the stated address was leaving the premises for another location with the intention of getting "rid of the solid drugs".

The police, with no time to secure a warrant, gathered the necessary uniformed officers to make a warrantless entry of the premises, the obvious objective being to secure evidence before it was removed and lost to them. Thus, given the immediacy of the situation, the police were justified in effectuating entry without a warrant.

The legality of the actions of Officer Mehring subsequent thereto in "seizing" the person of Rodriquez and the search of her purse are one of first impression in this Commonwealth in that they were accomplished without the use of a warrant and during the course of a drug raid on property from which a Puerto Rican male was the known distributor of the cocaine sought.

We look for guidance from the United States Supreme Court's ruling in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), where in the police had obtained a warrant to search a home for narcotics. Once at the location, the police saw the defendant exit the front door of the home and proceed across the porch and down the steps. They requested his assistance in gaining entry ³ and detained him while they searched the premises. After finding narcotics in the basement and ascertaining that the defendant was the owner of the home, he was arrested. A search of his person by police produced an envelope containing 8.5 grams of heroin.

The suppression court's grant of the defendant's motion, and its affirmance by the appellate courts of Michigan, was reversed by the United States Supreme Court.

The Summers Court, albeit assuming that the pre-arrest "seizure" of the defendant was unsupported by probable cause, acknowledged a body of law which "demonstrate[d] that the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] and Adams [v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ]." Id., 452...