¶1dissenting.
¶2Respectfully, I must dissent. I would reverse the decision of the Court of Appeals in regard to the suppression of the telephone records and would reinstate the holding of the trial court on that issue. The trial court held, and I agree, that the improper use of the Grand Jury subpoena power to obtain the telephone records renders the evidence found because of them “the fruit of the poisonous tree.” The Commonwealth did not appeal the holding that the telephone records were improperly obtained and should be suppressed, but does contest the trial court’s finding that the other evidence is tainted by the illicit nature of the phone record’s source. The argument which succeeded in the Court of Appeals, and is again successful here, is that there was other sufficient evidence from an independent source to support probable cause for the search warrant and therefore the evidence seized need not be suppressed.
¶3In regard to Appellant, the other evidence emphasized by the majority consisted of observation that “vehicles would stop [at Appellant’s residence] for a short time and then leave,” that she was in possession of rolling papers when stopped, that she admitted to marijuana use when questioned, and when asked if she dealt in drugs, said it was “nothing you would be interested in.” While this evidence might support a finding of probable cause, what is not recounted or emphasized by the majority is that the only way the investigation focused upon Appellant was through the illegally obtained telephone records. Had there been no phone records, Appellant’s name and address would not have come to the attention of the police, her house would not have been placed under surveillance, and she would not have been stopped by the police and questioned in the first place. Nowhere in the affidavit supporting the issuance of the search warrant is there any evidence, or other information, that would explain why .the Appellant became the object of law enforcement attention in the first place, if not for the telephone records. The doctrine of the fruit of the poisonous tree has steadily weakened over the past two decades. With the issuance of this opinion, it nears extinction in the Commonwealth.
¶4JOHNSTONE, J., joins this dissent.