Just before Christmas, a Superior Court panel consisting of Judges Wecht, Panella, and Ott released a new opinion, Commonwealth v. Perel, 2014 WL 7331025, exploring the confines of the 4th Amendment and Pennsylvania’s counterpart in Article 1, § 9 of the Commonwealth’s Constitution. Judge Wecht wrote the majority opinion in the 2-1 decision. Judge Ott dissented.
While presenting an interesting set of facts, the Perel decision raises more questions than it gives answers. This is a decision favoring a strong civil liberty protection regime against overbearing actions by police officers. Nevertheless, the decision leaves law enforcement without clear guidance about what investigative methods will pass muster in the courts. Perel is a strange case that might have lasting ramifications for criminal law in Pennsylvania, or might just be an unnoticed and unimportant blip on the radar.
At the outset, it should be noted that the Mercer County District Attorneys Office failed to even file a brief in the case, despite having been granted an extension to do so by the Court. In her dissent, Judge Ott admonishes the prosecution for its failure in this regard, and questions whether the lack of advocacy on their part unduly affected the final result. Additionally, this decision comes after Judge Wecht has announced his candidacy for one of the three vacancies on the Pennsylvania Supreme Court.
On April 21, 2011, Officer Louis Squatrito responded to a report of an armed robbery. Arriving on the scene, the officer found a man hiding in the woods who explained to him that his former jail cellmate, Perel, had just robbed him, had concealed the black handgun in a small brown leather bag and run off to a nearby apartment belonging to his girlfriend. The victim also stated that he saw Perel drive away in a tan Chevy Impala accompanied by a black female. On this information, police quickly located the car and passengers meeting the description given over the dispatch. A search revealed marijuana in Perel’s pocket. He was taken into custody.
The female passenger was identified as Perel’s girlfriend and owner of the apartment near where the robbery took place. After some hesitation, the woman signed a consent form specifying that the police were allowed to search the apartment for the black handgun, ammunition, and a “black or brown leather bag similar to a hygiene/shaving kit bag.” Undertaking the search, the officers located the described bag in the rear bedroom. Opening it, they found that it contained marijuana and a handgun. Officers also searched a nearby piece of luggage, and found a receipt with Perel’s name on it. In an omnibus pretrial motion, Perel argued that this search was unconstitutional because his girlfriend did not have the authority to consent to a search of his personal effects. The trial judge disagreed, and Perel was ultimately convicted.
Under Supreme Court precedent, a person who challenges a search or seizure on Fourth Amendment grounds must demonstrate (1) that he or she had a subjective expectation of privacy, and (2) that his or her subjective expectation of privacy is one that society is prepared to recognize as reasonable and legitimate. The majority found the subjective expectation factor met because the leather bag was zippered, was in a back bedroom, and because Perel did not inform his girlfriend of its contents. Likewise, the panel majority found that Perel’s expectation of privacy was reasonable, likening it to Bond v. United States, 529 U.S. 334 (2000), where the Supreme Court held that a border agent could not physically manipulate a traveling duffel bag in the luggage compartment of a bus to ascertain what was inside. The panel was adamant that the nature of the bag in Perel’s case –namely that it was a personal traveling hygiene kit-bag– was important in establishing that the second factor was met.
The panel was similarly unconvinced that Perel’s girlfriend had actual authority to consent a search of his personal effects, as she had admitted to having no knowledge of their contents. While she clearly had the authority to consent to the search of the whole apartment, this was not the same as having the consent to search those individual containers in the apartment that did not belong to her. The next question was whether it was reasonable for the police to believe that the girlfriend had “apparent authority” to consent to the search of the hygiene kit, an objective-based test considering the totality of the circumstances.
The two-member majority believed that it was objectively unreasonable for the police officers to believe that the woman had authority to consent to the search of a men’s travel kit. In fact, the majority noted that the very fact that the officers knew that Perel had carried the shaving kit into the apartment was objective evidence that the girlfriend was without apparent authority to consent to its opening.
Finally, responding to the dissenter, the majority held that the inevitable discovery doctrine did not apply under these circumstances. Citing court precedent the majority stated that Pennsylvania’s inevitable discovery doctrine does not apply where privacy must be safeguarded, but only in cases of police misconduct (as 4th Amendment “exclusionary rule” is solely based on the notion of making the 4th Amendment right meaningful, not any constitutional right in itself). Furthermore, it noted that an en banc decision from 2012, Commonwealth v. Berkheimer, 57 A.3d 171, had suppressed evidence where there was not a “truly independent” source for the discovery.
Dissenting, Judge Ott would have affirmed the trial court’s decision not to suppress the evidence. She believed that, under the plain view doctrine, the bag was highly visible during the valid search of the apartment–and was specifically what the officers were looking for. Although she similarly believed that the officers should not have opened the bag to “search” it, that was different from what was otherwise a constitutionally valid “seizure” pending the eventual obtainment of a search warrant. Consequently, she believed that the inevitable discovery doctrine should apply, allowing the evidence at trial because the police, having seized the bag, would have discovered the contents of the case eventually under any circumstance. Judge Ott argued that Berkheimer was irrelevant to these facts, because the police were acting on the victim’s information that the armed robber had entered into the apartment with the travel bag, and the girlfriend had given a valid consent for police to search the apartment.
This case presents a lot of questions: Should the “masculinity” of a container be a constitutionally justifiable consideration? Was suppression necessary where the traveling kit would have been opened upon the inevitable obtainment of a warrant? Is a shared bedroom a space deserving the same constitutional protections for “personal effects” of private guest quarters where there is a signed consent form? Why didn’t the majority give any credit to the dissenter’s distinguishing of the seizure from the search? What really are the considerations separating Pennsylvania’s version of the inevitable discovery doctrine from that allowed under the United States Constitution? Why did the Mercer County District Attorney fail to file a brief?
A suppression court is often the “do or die” moment for a criminal defendant. Our constitutional system is designed to necessarily protect criminals in the same ways it protects the innocent. As Justice Cardozo famously said about the exclusionary rule, where the “constable blunders” and commits a constitutional violation while investigating a crime, the evidence is inadmissible at trial and the defendant must go free. To speak to a Fairlie and Lippy, P.C. attorney about your case, contact us today.