Standing no impediment to defendant’s challenge to unlawful police entry that put him in possession of paraphernalia; exclusionary rule must apply

Police entered an apartment without cause or exigent circumstances and observed defendant passing a marijuana pipe to another person. The state argued the defendant lacked standing, but the court held that to reward the government’s conduct here would “’emasculate'” the Fourth Amendment and State constitution. Commonwealth v. Arnold, 2007 PA Super 248, 932 A.2d 143 (2007):

[*P16] For these reasons, we conclude that the fact that Arnold was not a resident of the apartment is not relevant in the disposition of this matter. Indeed, to apply the reasoning of Millner under the facts found here would permit police officers to provide retroactive justifications and randomly invade homes on the pretense that any person found to be a non-resident after the fact could be searched. See Demshock, 854 A.2d at 556-57 (finding police must articulate exigent circumstances at time of entry and cannot provide retroactive justifications to demonstrate exigent circumstances). Allowing the Commonwealth to provide such justifications following a random invasion into a home without a warrant or probable cause and exigent circumstances would trivialize the protections afforded by the United States and Pennsylvania Constitutions. See Davis, 743 A.2d at 953 (reiterating that allowing the police to observe illegal activities by their own unlawful means “emasculates the protections afforded to appellant and all citizens by the United States and Pennsylvania Constitutions.”). As the police officers did not legally enter the apartment, we conclude that the drug evidence and paraphernalia should have been suppressed as the fruits of an illegal entry and search. See Demshock, 854 A.2d at 559 (concluding that the entry and search of the apartment was unconstitutional and hence the fruits of the search should have been suppressed).

Comment: This has been a bone of contention for me for decades: When the defendant becomes a target of illegal police conduct, he should have standing to challenge blatantly illegal conduct directed at him because of “bad faith,” notwithstanding the officer’s subjective intent is irrelevant. But, can bad faith be proved objectively? Sometimes yes. Stated another way, suppose the police are willing to conduct an illegal stop and search of A with the purpose of gaining evidence against B, entirely willing to sacrifice the case against A because B is the “bigger fish.” What then? This is the gist of “target standing,” a concept that has long been rejected by SCOTUS. The question of standing here is factual and should not be “once removed”; i.e., the target defendant should be there and directly involved, not indirectly involved because the illegal search of a place where he had no standing reveals evidence against him that was left or is otherwise present when the defendant is not.

Officer’s subjective intent to search the defendant was irrelevant when there was probable cause for a traffic stop and reasonable suspicion developed because of defendant’s conduct during the stop and that led to a patdown. United States v. McMahan, 2007 U.S. Dist. LEXIS 64600 (N.D. Tex. August 30, 2007).*