Commonwealth v. Reiss

655 A.2d 163, 440 Pa. Super. 151
CourtSuperior Court of Pennsylvania
DecidedAugust 22, 1995
StatusPublished
Cited by15 cases

This text of 655 A.2d 163 (Commonwealth v. Reiss) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Reiss, 655 A.2d 163, 440 Pa. Super. 151 (Pa. Ct. App. 1995).

Opinions

DEL SOLE, Judge:

Appellant, who was tried and convicted by a jury of numerous charges resulting from burglaries which occurred on the campus of Pennsylvania State University, takes this appeal [155]*155from the Judgment of Sentence he received. On appeal he makes numerous claims, which upon review of the law as it applies to the facts of this case, we find to be without merit.

Initially, Appellant challenges the trial court’s rulings with respect to the suppression of evidence. He claims that the Pennsylvania Constitution prohibits the use of deceptive practices of the part of police to gain entry into a home, an event which he asserts occurred here. Further he submits that his indication that he wished to speak to an attorney on a written consent form should have been honored, and since it was not, all statements made subsequent to that indication should have been suppressed. Because the resolution of these claims rests on the particular facts of this case, we begin by recounting them.

As part of an ongoing investigation, Mr. Leon Gefert was arrested by police and later agreed to cooperate with them. Gefert advised the police that he knew Appellant was involved in stealing computers and other equipment and agreed to go with an undercover officer and attempt to meet Appellant at his apartment to confirm that he had possession of these items. After telephoning Appellant agreed Gefert traveled to Appellant’s apartment with the officer and introduced him to Appellant as a cousin. While Appellant and Gefert talked, the officer noticed computer equipment which matched the description of the equipment which had been reported stolen. After exiting, the undercover officer met with Officer Sowerby in the back of the building and advised him of his observations inside Appellant’s apartment. Sowerby and a criminal investigator, John Wilson, then went to Appellant’s door, knocked and announced themselves as police. Appellant answered the knock, and Sowerby advised him that they were there to investigate stolen computer equipment and asked if Appellant would consent to a search of the apartment. Appellant was read his Miranda rights, and was read and responded verbally to a consent form. He was then given the form to fill out and sign, which he did, and the search proceeded, yielding many stolen items of equipment. Appellant pointed out the [156]*156location of many of the items and advised the officers from where they had been obtained.

Appellant’s first claim concerns the undercover officer’s actions in gaining entry into Appellant’s apartment under a misrepresentation. Appellant argues that the Pennsylvania Constitution, Article I Section 8, affords defendants greater protection than that afforded under the federal constitution, and that the deceptive practice employed in this case must cause the fruits of this search and any later search to be suppressed. Although the question of deceptive police practices under thé Pennsylvania Constitution is interesting and novel, it need not be reached under the circumstances presented in this case. While it was acknowledged that the police gained entry through a ruse and from that entry made observations of what they perceived to be stolen goods, the police did not seize the property on this occasion, nor did they use the information acquired while in the apartment in support of an effort to obtain a warrant. If either of those events had occurred, it would be necessary for us to undergo the extensive analysis of our Pennsylvania Constitution and the role of deceptive police practices as it relates to our state’s protection of privacy. However, under the undisputed facts of this case, after Gefert and the undercover officer left, two other officers arrived at Appellant’s apartment, advised Appellant of their identity and purpose and gained entry with Appellant’s permission to search. Thus, while it may be argued that true consent was not given at the time of the initial search by the undercover officer, this situation did not give rise to the receipt of evidence in this case. The actual search and seizure which formed the basis for the charges filed against Appellant came after Appellant gave his consent to people he knew were police officers and for a purpose for which he was advised.

In Commonwealth v. Haynes 395 Pa.Super. 322, 577 A.2d 564 (1990), the police deceived the defendant concerning the reasons why they asked him to accompany them to the Public Safety Building. While the defendant agreed to go to clear up an outstanding bench warrant, the police desired to have him travel into their jurisdiction where he was questioned about [157]*157his participation in a homicide. Although the court reviewed the deception issue under a Fourth Amendment analysis, the court included general statements of law which apply to questions of whether a consent was valid. The court stated:

That common thread is that the deception must not pertain to the consent itself, in some sense it must be collateral to the content of the permission voluntarily granted. Thus, the accused must know what is being consented to, and if the police exceed the scope of that consent, then they have passed their limits of permissible deception. This is consistent with the line of cases which have held that if the accused does not understand what it was that was consented to, then the consent is invalid.

Id. at 337, 577 A.2d at 572. (citations omitted.)

In the instant case, although Appellant was deceived by the undercover officer’s identity and purpose for entry, no evidence was gathered directly as a result of his entry. The police did not use information gathered by the officer to obtain a warrant, nor did the undercover officer seize incriminatory items at that time. Rather the officer advised others of what he saw, and then police knocked on Appellant’s door and sought his consent for a search. At this time Appellant was not being deceived. He knew that the police were at his door, he knew why they were there and he knew that they wished to search for stolen equipment. There is no indication from the record that the consent given by Appellant in this case was anything other than freely made and informed. This conclusion makes any discussion of the propriety of the undercover officer’s actions unnecessary. See Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023 (1989) (where even if police acted outside their jurisdiction, the warrantless search was justified by the freely given and informed consent of the homeowners.) Contrast Commonwealth v. Daniels, 410 Pa.Super. 275, 599 A.2d 988 (1991) (where consent found to be invalid because it was the product of an illegal detention and not the result of an independent act of free will.)

[158]*158Regardless of our conclusion concerning this first issue, Appellant argues that the evidence and statements made to police officers at his apartment should be suppressed because he indicated on the consent form that he wished to speak to an attorney. The form is printed on one page and consists of five questions and a signed statement. Appellant answered, “yes” to every question, including the one which read “Do you want to consult your attorney?”. In contradiction, Appellant signed the following statement a few lines down on the same page:

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Bluebook (online)
655 A.2d 163, 440 Pa. Super. 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-reiss-pasuperct-1995.