J-A14040-14
2014 PA Super 199
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RODNEY SCOTT BOWMASTER,
Appellant No. 1925 MDA 2013
Appeal from the Judgment of Sentence of October 7, 2013
In the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000483-2012
BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,* JJ.
CONCURRING OPINION BY OLSON, J.: FILED SEPTEMBER 17, 2014
I am constrained to agree that the trial court erred in failing to
suppress the evidence introduced against Appellant. I write separately,
however, as I reach this conclusion for reasons that differ from those
expressed by the learned Majority.
The Majority offers the following analysis to support its conclusion that
su
in this manner, the Majority then holds that Pennsylvania State Troopers
William Ritrosky (Trooper Ritrosky) and Andrew Mincer (Trooper Mincer)
impermissibly intruded upon the protec
*Retired Senior Judge assigned to the Superior Court.
J-A14040-14
the Commonwealth failed to establish exigent circumstances that justified
In the initial component of its analysis, the Majority reasons that
and a closed fence surrounded the area.1 See Majority Opinion at 5-6. The
Majority then treats the activities of both troopers on the same footing,
property. Id. The record is clear, however, that when the officers entered
the property, both Trooper Ritrosky and Trooper Mincer initially approached
Trooper Ritrosky remained at the entrance and knocked on the door,
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1
that there was a fence around Ap
is not clear from the record that the gate was closed at the time that the
troopers arrived. In fact, when specifically asked whether the gate was
closed, Trooper Mincer stated that he could not recall. N.T., 8/8/13 at 27. I
the area around the front entrance of the structure. See
Exhibits 1, 2 and 3, 8
gate is opened. I acknowledge that these photos were taken sometime after
the incident in question. However, when shown the photos, Trooper
Ritrosky testified that, except for the growth of weeds around the trailer, the
photo showed the trailer basically the same way as it was on the date in
question. N.T., 8/8/13 at 11.
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ard and stopped in front
of the second window down from the doorway of the trailer. Id.
As the Majority points out, our cases have extended the constitutional
protections of the Fourth Amendment and Article 1, § 8 of the Pennsylvania
Constitution to the c See Majority Opinion
at 5; see also Commonwealth v. Johnson, 68 A.3d 930, 936 n.3 (Pa.
Super. 2013) (citation omitted). To assess what is properly deemed
al
reasonably may expect that an area immediately adjacent to the home will
remain private. Curtilage is entitled to constitutional protection from
unreasonable searches and seizures as a place where the occupants have a
reasonable expectation of privacy Id.
(internal quotation marks and citations omitted).
I am not convinced, as a matter of law, that the erection of signs and
the presence of a fence can alone transform a front entryway and porch area
into the protected confines of the curtilage of a property. Our cases have
consistently considered many factors -- not simply the placement of signs or
the erection of a fence -- to determine whether an individual reasonably may
expect privacy within an area immediately adjacent to his home. See e.g.
Commonwealth v. Simmen, 58 A.3d 811, 815-816 (Pa. Super. 2012)
(driveway in front of house leading up to internal garage did not constitute
curtilage where it was primary access route to front door and there were no
signs warning against trespass or fences precluding street access);
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Commonwealth v. Gibbs, 981 A.2d 274, 280 (Pa. Super. 2009) (front
porch did not constitute curtilage where it was used by deliverymen and
visitors to access apartment, it was contiguous to public sidewalk, and there
was no gate or sign precluding access by members of the public). I must
concede that our curtilage analyses in these cases considered the presence
(or absence) of signs and fences. Nevertheless, our reasoning therein
turned more so upon the reasonable expectations of the occupants, which
we gleaned from the likelihood that the public would require access through
proximity and orientation of the challenged space to public pathways and
thoroughfares. The pattern that emerges in these cases is that there is a
lower expectation of privacy in frontal street-oriented spaces required for
entryway access than in areas located at the rear of a property. Compare
Simmen, 58 A.3d at 816 (defendant did not have a reasonable expectation
of privacy in front driveway that served as main pathway to front door) and
Gibbs, 981 A.2d at 280 (front porch did not qualify as curtilage where it
functioned as principal entryway into residence) with Commonwealth v.
Lee, 972 A.2d 1, 4 (Pa. Super. 2009) (recognizing that defen
reasonable expectation of privacy in area behind his home required
Commonwealth to establish both probable cause and exigent circumstances
to justify warrantless search).
suppression hearing, including the testimony of the witnesses and the
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exhibits entered into the record. Based upon its review, the trial court
members of the public would have required access through this segment of
2
Trial Court Opinion,
8/19/13, at 3-4 ¶ 12. In essence, the trial court held that curtilage may not
surrounding a home such that the residence becomes an island unto itself.
3
Trooper Ritroskey were required to enter a yard area through a gate. This
area is clearly open to the public, as anyone desiring to make a delivery and
Id. at 3-4 ¶ 12.
In sum, I do not believe that our case law compels the conclusion that
Trooper Ritrosky and Trooper Mincer entered the constitutionally protected
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2
The photographs introduced into evidence at the suppression hearing show
through the gate
and past the posted signage. See
3
into the trailer did not constitute the curtilage of the property. See Trial
Court Opinion, 8/19/13, at 8-9.
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public might do. See Florida v. Jardines, 133 S.Ct.
police officer not armed with a warrant may approach a home in hopes of
speaking to its occupants, because that is no more than any private citizen
Commonwealth v. Gibson, 63
have the power to knock on the doors of the citizens of this Commonwealth
onto
that Trooper Mincer impermissibly encroached upon the protected curtilage
front door in an easterly direction, took up a position two windows down
point. In contrast to the common entryway, this area of the property was
the
public would not need to cross this portion of the property in order to gain
property. Since Trooper Mincer lacked probable cause and exigent
circumstances to support his movement towards this part of the curtilage
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observations as the fruit of an illegal search. In turn, since the
Common
residence was unlawful.4 Hence, I agree that Appellant was entitled to
suppression of the evidence offered against him.
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4
If Trooper Mincer had observed contraband from a lawful vantage point, I
would not hesitate to conclude that he possessed both probable cause and
exigent circum
establishes that, when Trooper Mincer looked through the window, he saw a
rifle and large knives. N.T., 8/8/13 at 18, 19. He also saw small plastic
bags that, in his experience, resembled heroin packets. Id. Moreover, a
window fan blew into his face from which Trooper Mincer smelled a strong
chemical odor that, in his experience, was from synthetic drugs. Id. at 18.
Most importantly, Topper Mincer saw a person other than Appellant in the
room who fled to the rear of the trailer when Trooper Ritrosky knocked at
the front door. Id. at 15. When Appellant answered the front door, Officer
Mincer asked Appellant whether anyone else was in the trailer and Appellant
Id. at 16. Trooper Mincer knew that was not true as he had
seen the other person flee to the rear of the trailer. In my view, all of these
factors established probable cause and exigent circumstances to do a
protective sweep of the trailer. See Johnson, 68 A.3d at 944-946 (police
officers who restrained defendant and conducted protective sweep of his
trailer without a warrant acted with probable cause and exigent
circumstances when, in response to call about drug-related activity, officers
encountered an occupant of d
evidence if defendant were permitted to re-enter trailer). Additionally, I am
not bothered by the hour at which the troopers arrived at the trailer. The
troopers were investigating a claim that a gun was stolen in a burglary and,
at 2:10 a.m. on the date in question, they received information from a
witness that Appellant had received the stolen gun in satisfaction of a debt.
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
where they saw lights on in the trailer and could see that a television was
on. Id. at 6, 14. Based on this information, the troopers believed that
people were awake in the trailer. Id. at 13. Trooper Ritrosky then knocked
at the front door. These facts are very different from the facts in
Commonwealth v. Berkheimer, 57 A.3d 171 (Pa. Super. 2012) (en banc),
the case upon which the learned Majority relies. Majority Opinion at 7-8. In
Berkheimer, based on a tip that a person wanted on a probation detainer
11:30 p.m. and noticed that the rooms were all dark and the occupants
front door causing the door to open. The trooper than entered the darkened
home where he saw two people sleeping. Id. at 174-175. Clearly, the facts
of the instant case are markedly different from the situation in Berkheimer.
Considering the totality of the circumstances, I believe that it would have
if Trooper
Mincer had not ent
obtain the information necessary to establish probable cause and exigent
circumstances.
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Com. v. Bowmaster, R.
Combined Opinion