Com. v. Shiflet

• Citation: 670 A.2d 128,543 Pa. 164
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Martina SHIFLET, Appellee.
• Decision Date: 29 December 1995
• Court: United States State Supreme Court of Pennsylvania

Page 128

670 A.2d 128

543 Pa. 164

COMMONWEALTH of Pennsylvania, Appellant, v. Martina SHIFLET, Appellee.

Supreme Court of Pennsylvania.

Argued Dec. 7, 1994.

Decided Dec. 29, 1995.

Roy A. Keefer, Gettysburg, for Commonwealth.

Jeffrey M. Cook, Gettysburg, Anthony E. Miley, East Berlin, for M.M. Shiflet.

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

OPINION OF THE COURT

CAPPY, Justice.

In this appeal we must consider whether the search incident to arrest exception to the warrant requirement of Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution can justify a warrantless search and seizure of Appellee's purse, when Appellee was not arrested and there was neither probable cause nor an articulable suspicion that Appellee was involved in criminal activity. We find that the search incident to arrest exception clearly does not apply to the facts of this case, and therefore affirm the order and opinion of the Superior Court.

The facts of this case are as follows. On February 4, 1992, Trooper Ivan Taylor of the Pennsylvania State Police made a traffic stop of a vehicle in which Appellee was a passenger. The vehicle was stopped because the driver was suspected of driving under the influence of alcohol. The driver was asked to exit the vehicle and perform a field sobriety test, and Appellee was asked to exit the vehicle on the opposite side. She did so with her purse in her possession. The driver was subsequently placed under arrest for DUI, and another passenger was arrested for disorderly conduct. Appellee was not arrested.

Because Appellee did not have a valid driver's license and therefore could not drive herself home, Trooper Taylor offered her a ride to the police barracks. Upon acceptance of this offer, Trooper Taylor seized Appellee's purse from underneath her arm and, without asking for Appellee's permission, began to search through its contents. Trooper Taylor found a small leather pouch and, suspecting it contained drug paraphernalia, requested that it be opened. Appellee consented and Trooper Taylor discovered a small amount of marijuana and three marijuana pipes. Appellee was then arrested and charged with possession of a small amount of marijuana and possession with intent to use the drug paraphernalia.

An Omnibus Pretrial Motion to suppress the marijuana and the drug paraphernalia was filed and a hearing was held. At the hearing, Trooper Taylor gave the following reason for searching Appellee's purse: "I never even asked for consent to search her purse. It's my customary practice for officer safety, as I stated earlier, anytime I transport a female subject with a purse to look inside the purse for any type of weapons." (N.T. at 15, 8/2/92). The trial judge denied the suppression motion and a jury trial was held, after which Appellee was found guilty of the offenses charged. Post-trial motions were filed, which were also denied.

On appeal, the Superior Court reversed and remanded for a new trial. The court declined to extend the search incident to arrest exception to circumstances where the property being searched is in possession of a person who has not been arrested. The Superior Court noted that:

[Appellee] is not the type of person for whom the search incident to arrest exception was meant to apply. To hold otherwise would set a rather dangerous precedent in terms of how far this exception could be extended. We are not willing to extend it so far as to rule that [Appellee], a passenger turned bystander, must sacrifice her Fourth Amendment rights simply because her companions have been arrested. Third party bystanders do not give up their right to require reasonable searches and seizures merely due to their presence at the scene of an arrest. See Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Commonwealth v. Martin, Pa.Super. , 620 A.2d 1194 (1993).

431 Pa.Super. 444, 450, 636 A.2d 1169, 1172 (1994).

In reaching its decision the Superior Court focused on the Fourth Amendment, although it noted that case law in Pennsylvania had historically taken a more narrow view of the search incident to arrest exception than the federal courts. We agree with the Superior Court's analysis. ¹

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures. ² However, we find that the issue in this case is answered by Article I, Section 8 of the Pennsylvania Constitution. It is axiomatic that absent a warrant, a search may only be justified if there is a recognized exception. See Commonwealth v. Smith, 511 Pa. 36, 41, 511 A.2d 796, 798, cert. denied sub nom Smith v. Pennsylvania, 479 U.S. 1006, 107 S.Ct. 643, 93 L.Ed.2d 700 (1986). The Commonwealth argues that the search incident to arrest exception, as set forth in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), applies to this case. However, we do not find this contention to be correct.

The most glaring weakness in the Commonwealth's argument is that there simply has not been an arrest of Appellee in this case. A lawful arrest is a precondition to the applicability of the exception. Chimel, supra; United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); New York v. Belton, supra; Commonwealth v. Frank, 407 Pa.Super. 500, 595 A.2d 1258, 1260 (1991) ("In order for a warrantless search to be lawful it must have been made pursuant to a lawful arrest"). Here, Appellee was not subject to a formal arrest before her purse was seized, and she was standing outside of the vehicle with her purse when the search and seizure took place. The Commonwealth does not present any facts that would indicate that Appellee was subject to a custodial arrest, and it is conceded that the police had neither probable cause nor a reasonable suspicion that Appellee was engaged in any illegal activity. The cases the Commonwealth cites in support of its position that the trooper had the authority to search Appellee's purse all involved a search of the arrestee's belongings. See Commonwealth v. Guzman, 417 Pa.Super 364, 612 A.2d 524, appeal denied, 535 Pa. 614, 629 A.2d 1377 (1992); Commonwealth v. Jones, 396 Pa.Super. 304, 578 A.2d 527 (1990), appeal denied, 526 Pa. 647, 585 A.2d 467 (1991); Commonwealth v. Mickell, 409 Pa.Super. 595, 598 A.2d 1003 (1991), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992); Commonwealth v. Henry, 358 Pa.Super. 306, 517 A.2d 559 (1986). Thus, these cases are inapposite to the case at bar.

Similarly, the contention that this was a search of the area "within the control of the arrestee," and therefore "incident" to the arrest, must fail. The federal law on what the police are permitted to search as incident to an arrest when an automobile is involved is quite broad. See New York v. Belton, supra, in which the United States Supreme Court adopted a "bright-line" test permitting the search of the entire passenger compartment of a vehicle and any containers therein incident to the lawful arrest of an occupant. However, in Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995), this Court rejected the broad Belton rule established by the United States Supreme Court. Instead, we continued to follow the decision in Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980), wherein this Court limited the warrantless search of an automobile incident to an arrest to areas and clothing immediately accessible to the person arrested. Further, the Court in Timko made it clear that the purpose of this search is to prevent the arrestee from securing weapons or destroying contraband. 491 Pa. at 38-39, 417 A.2d at 623. We stated in White:

Merely arresting someone does not give police carte blanche to search any property belonging to the arrestee. Certainly, a police officer may search the arrestee's person and the area in which the person is detained in order to prevent the arrestee from obtaining weapons or destroying evidence, but otherwise, absent an exigency, the arrestee's privacy interests remain intact as against a warrantless search. In short, there is no justifiable search incident to arrest under the Pennsylvania Constitution save for the search of the person and the immediate area which the person occupies during his custody....

543 Pa. at 57, 669 A.2d at 902. [emphasis in original, footnote omitted]. We believe that the facts of this case clearly do not come within the ambit of the White standard as to when a search of the person and/or the immediate area is permissible. Additionally, we agree with the Superior Court that the exception is not applicable to these facts even under the broad Belton standard.

As noted above, there was no arrest of Appellee, whose property was searched. The search of Appellee is simply too attenuated from the arrest of the driver and the other passenger to properly be considered to be "incident" to the arrest of the driver and the other passenger. It was only in connection with Trooper Taylor's offer to drive Appellee home that the apparent need on the part of Trooper Taylor to search Appellee's purse arose. Trooper Taylor did not indicate that he needed to search Appellee's purse incident to the arrest of the driver and the other passenger, and had no reason to believe that Appellee was armed or was engaged in criminal conduct. Thus, the facts do not warrant an expansion of the search incident to arrest exception to this bystander. Our holding in White would certainly counsel against the expansion of the search incident to arrest exception to Appellee here, since the purpose of the exception recognized in White would not be applicable here. ³ Additionally, Belton and Chimel have not been extended to divest a third party of his or her legitimate expectation of privacy. See...