Commonwealth v. Doria

574 A.2d 653, 393 Pa. Super. 363, 1990 Pa. Super. LEXIS 915

• Court: Superior Court of Pennsylvania
• Decided: May 3, 1990
• Docket: No. 00482
• Status: Published

Opinions

TAMILIA, Judge:

This appeal by the Commonwealth is before this Court en banc upon the granting of appellee Edward Doria’s application for reargument. By memorandum filed February 21, 1989, a three-judge panel of this Court reversed a January 11, 1988 Order of the Court of Common Pleas of Chester County suppressing all evidence secured as a result of a search conducted pursuant to a warrant by reason of the suppression court’s finding “no probable cause for a police officer or a reviewing magistrate to conclude that property stolen twelve days before execution of a warrant would be found on the premises [appellee] shared with his mother.” Slip Op., Smith, J., 2/11/88, p. 5.

The underlying factual history of this case as established by the record is as follows. On May 14, 1987, Detective Paul Raley of the Major Crimes Division of the Philadelphia Police Department procured and executed a search warrant for an apartment in the Carl Mackley Apartments in Philadelphia. In this instance, the personal information regarding the probable cause for the warrant came not from Detective Raley, but from summaries provided him by Detectives David Raum and John R. Bailey of the Tredyffrin Township Police Department, Chester County. Additional information supplied to Detective Raley was summarized from a Delaware County arrest warrant affidavit prepared by Pennsylvania State Police Officer Thaddeus Mesh. The search warrant affidavit in question states:

On 3-11-87 at approx. 10:00 AM the residence of Linda Doyle located at 804 Meadow Crt. in Glen Mills Pa. was entered by forcing the front door with a pry type instrument. The incident was witnessed by a neighbor Randy Currie, 31, a resident of this private development. Just prior to the burglary Currie spoke with the operator of a yellowish/tan color Chevy Monte Carlo, which was parked outside of 804 Meadow Crt. Currie then entered his own residence and looked out his window and saw this operator exit the auto and remove a pry type instrument from his waistband and walk up to the front door of 804 Meadow Crt. He stuck the pry type instrument into the door and forced it open. Currie called the superintendent of the development Arthur Spaid, 62 W/M, who arrived shortly thereafter on the scene. Spaid then spoke to the same W/M, that entered the house. This male was just leaving the front of the house carrying a pillowcase. This male got into the yellowish/tan Chevy and drove from the scene. The male (Spaid) recorded the tag number of the auto which was Pa. Lie. #NZH-089.

This burglary was investigated by Trooper Robert Foster and Trooper T.J. Mesh of the Pa. State Police. He learned that numerous articles of jewelry and a pillow case were missing from the apartment at 804 Meadow Ctr. [sic] On 5-11-87, Trooper Foster showed a series of photos to both Currie and Spaid and they both identified Edward Doria W/M, DOB 10-5-57 as the male they saw enter and leave the residence at 804 Meadow [C]rt.

Det. David Raum of the Tredyffrin Township Police Dept, was interviewed by the affiant. Det. Raum stated that for the last three weeks Edward Doria has been a suspect in several burglaries in that township. He stated that on May 2nd 2 houses in the Chesterbrook area where entered by prying open the front doors. In the first burglary at 11 Painters Ln. a S & W .38 cal. revolver and assorted jewelry was taken. In the second at 191 Valletstream Ln. the items were placed in a pillowcase but were left at the. scene when the owner returned home. Det. Raum further stated that on May 2nd. 1987 at approx. 10:10 AM Edward Doria’s car was observed at 102 Camsten Crt. Mr. Paul Devito stated that he observed a yellow Monte Carlo pull into his neighbor’s driveway and a W/M and a W/F got out and walked up to his neighbors [sic] door. The neighbor was away for the weekend. Devito walked outside and looked in the direction of the W/M and W/F. Both then walked back to the car and drove off. Devito reported the license number as Pa. Lie. #NZH-089. Det. Raum stated that he conducted his own investigation into these incidents and learned that Edward Doria owner of the yellow Monte Carlo is currently on State Parole for Burglary. He checked Mackley Apts, at M & Bristol Sts. in Philadelphia.

During the week of 5-6-87 and 5-12-87 Det. Raum conducted a surveillance at the Carl Mackley Apt’s. He saw that Edward Doria was sleeping there and went in and out during the day.

The affiant requests that this warrant be issued for the following reasons:

1— It is believed that Edward Doria is a resident at apt. # 136 at the Carl Mackley apts.

2— It is believed that Edward Doria is responsible for the 2 burglaries that occurred on May 2nd in the Chesterbrook Development. The method of entry was the same and jewelry was taken. This is the same as the Burglary that occurred on 3-11-87 in which Doria was identified.

3— It is believed that Doria is dealing in some jewelry. He was observed to have made 2 trips on the same day to the same jewelry store. Each time he entered empty handed and came out empty handed.

4— It is believed that Doria is a suspect in approx. 10 other Burglaries that have occurred in Tredyffrin Township.

Thursday 5-14-87 Edward Doria was arrested by police at 500 E. Allegheny Ave. and charged with Burglary from 3-11-87.

The allegation that the eyewitness Spaid recorded the license number which was traced to appellee’s automobile was subsequently conceded by the Commonwealth to be incorrect. This information was apparently culled from other sources and mistakenly attributed to Spaid.

After executing the search warrant with Detective Raley on May 14, 1987 at the Carl Mackley apartment rented to appellee’s mother, but where appellee was believed to be residing, Detective Bailey testified neither the jewelry, the gun nor any other item listed in the warrant was found during the search. However, he did find other items listed as missing on police crime reports, namely a black leather jacket and six coin sets in cardboard folders. The leather jacket was found hanging in a closet in the apartment, while the coin sets were found on top of a bookshelf and a cabinet. Detective Bailey then telephoned the owner listing the jacket as missing for a description of the jacket, and he was given a size and brand name which matched that of the jacket found in the closet. As to the coin sets, Detective Bailey also telephoned their purported owner, and she also described them sufficiently for the police to seize them.¹

The issues before this Court on reargument deal solely with the propriety of the affidavit of probable cause, the subsequent seizure of the jacket and coin sets and the good faith of the police in executing the search warrant at the Carl Mackley Apartments. We have undertaken a review of those issues and the appropriateness of the trial court’s determination. We also undertake to determine the appropriateness of the panel’s action and, in doing so, conclude this review was improvidently granted.

As to the first issue as stated by the majority of the panel, the police had probable cause to believe that Edward Doria committed three burglaries, one on March 11, 1987, and two on May 2, 1987. Based on this information, a search warrant was obtained for the residence of Doria’s mother, which was where he made his home. The affidavit portion of the warrant specified that the police were attempting to find burglary tools and property taken during the three burglaries, specifically:

Pry-type tools or large screwdriver. Any and all guns in particular a Smith & Wesson .38 Cal. revolver mod. # 36. Assorted jewelry in particular a jade pendent in the shape of a tear drop (no setting) and a gold pinky ring inscribed ‘FPO’ with a diamond.

We find no error in the probable cause to make a search for the property detailed, based on information and warrants provided by detectives and state police located in adjacent jurisdictions and supported by a surveillance of the residence. Commonwealth v. Crawford, 320 Pa.Super. 95, 466 A.2d 1079 (1983); Commonwealth v. Hutchinson, 290 Pa.Super. 254, 434 A.2d 740 (1981).

The second issue relates to admissibility of the evidence seized in the course of the search which was unrelated to the above specified property, none of which was found, and which supported charges for burglaries unrelated to those upon which the search warrant was issued. The trial court found that while there was no probable cause for the initial issuance of a warrant, the property seized would have been admissible as evidence had the initial warrant been valid. In this finding, the trial court was correct.

We hold that, supported by a valid search warrant, the evidence seized, relating to crimes not specified in the warrant, which was inadvertently found, may be admitted as evidence in the trial of those crimes.

As stated above, while no probable cause existed to arrest appellee or cause a search warrant to issue on the crimes subsequently charged, based on the evidence found at appellee’s residence, the seizure of that evidence is not rendered inadmissible. Appellee Doria was a suspect in ten additional burglaries and while the police had only suspicion and insufficient knowledge upon which to base a search warrant or arrest, they were not required to dismiss the knowledge from their minds while conducting a valid search for evidence of other crimes. Under the plain view doctrine, the seizing of property which was related to crimes other than those specified in the warrant was proper. The police found six coin sets which had been taken in a burglary on April 22, 1987 and a black leather jacket which had been taken in a burglary on April 27, 1987. Having knowledge of the crimes to which these related, although not covered by the warrant, the officer conducting the search seized the property which they came upon inadvertently. The officer confirmed, by phone, "with the victims the likelihood that these were items taken during the two burglaries, following which he seized them. We find no illegality in this procedure and believe it is clearly supported by decisions of the Supreme Court of the United States. Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979), summarized this view as follows:

[Coolidge v. New Hampshire,] “emphasized that under the so-called ‘plain view’ doctrine it would sometimes be permissible for police to seize items found while executing a warrant naming other objects[.]” W. LaFave, 2 Search and Seizure 165 (1978); see 403 U.S. [443] at 465-68, 91 S.Ct. at [2022] 2037-39 [29 L.Ed.2d 564]. The police must come upon the evidence inadvertently, in a place where they have a legal right to be at the time of the discovery, and it must be immediately apparent to them that the evidence is of incriminating character. See 403 U.S. at 465-69, 91 S.Ct. at 2037-40; Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974).

We believe this seizure complies with the inadvertency requirement of the plain view doctrine, which has been generally accepted in Pennsylvania. See Commonwealth v. Terra, 292 Pa.Super. 250, 437 A.2d 29 (1981); Commonwealth v. Casuccio, 308 Pa.Super. 450, 454 A.2d 621 (1982).

Since there appears to be no error in the findings by the majority of the panel in this case, we affirm and reinstate its decision and find reargument before the en banc Court to have been improvidently granted.

Order reversed; case remanded for trial.

Jurisdiction relinquished.

KELLY, J., concurs in the result of this opinion and files a concurring statement. MONTEMURO, J., files a dissenting opinion, in which DEL SOLE and JOHNSON, JJ., join.

1 . The Dissenting Opinion by Montemuro, J., relies heavily on Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), as authority for the theory that in seizing the jacket and coin set, the action was impermissible under the plain view doctrine. We believe this is a misapplication of Hicks and limits police action in a search, pursuant to a warrant, beyond what was intended. In Hicks, the police were looking for a shooter and weapons after a report was made that a shot had been fired through the floor, injuring a person below. During that search, the police turned over stereo equipment and obtained a serial number, constituting a separate search. Here, there was no “separate search" as the police were looking for items taken in two burglaries and came upon items they had reason to believe were taken from other burglaries. Their knowledge of victims who confirmed the identity of the items fully conforms with permissible action under Hicks which recognized that under the plain view doctrine and exigency of the circumstances, additional unspecified goods might be seized. Hicks simply held that a legitimate search for a man and a gun cannot be extended into another intrusion such as looking for stolen goods which could only be identified by serial numbers. It would permit a seizure under a search warrant for burglarized material when items from other burglaries, which could be identified, were found in plain view.