J-A12028-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA PAUL WHITTAKER,
Appellant No. 1763 EDA 2013
Appeal from the Judgment of Sentence June 5, 2013
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0000958-2012
BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*
DISSENTING MEMORANDUM BY PLATT, J.: FILED OCTOBER 29, 2014
I respectfully dissent. I conclude from the record that under our
standard of review the trial court properly decided in the totality of
circumstances to deny the motion to suppress evidence obtained on
execution of a night time search warrant. In my view, the challenged
preliminary “searches,” (more precisely, warrantless entries before the night
search warrant was issued and executed), were justified by exigent
circumstances. Furthermore, because there was no illegal search, there is
no antecedent illegality requiring application of the “fruit of an illegal search”
exclusion. I would affirm the trial court’s denial of suppression.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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In addition to the authority cited by the learned Majority, I note the
following applicable legal principles:
[O]nly in exigent circumstances will the judgment of the
police as to probable cause serve as a sufficient authorization for
a warrantless search.
* * *
Exigent circumstances may excuse an otherwise
unconstitutional search. [Commonwealth v. ]Wright, [742
A.2d 661, 664 (Pa. 1999). In determining whether exigent
circumstances exist, one factor the court may consider is
whether there is “a likelihood that evidence will be destroyed if
police take the time to obtain a warrant. . . .” Commonwealth
v. Roland, 535 Pa. 595, 637 A.2d 269, 271 (1994) (citations
omitted).
Commonwealth v. Wright, 961 A.2d 119, 137-38 (Pa. 2008) (some
citations omitted) (concluding trial court did not err in holding exigent
circumstances justified seizure of evidence without warrant; trial court
properly denied appellant’s suppression motion). Also,
It is well established that “[a]bsent probable cause and
exigent circumstances, warrantless searches and seizures in a
private home violate both the Fourth Amendment and Article 1,
[Section] 8 of the Pennsylvania Constitution.” Commonwealth
v. Gibbs, 981 A.2d 274, 279 (Pa. Super. 2009). Our courts
have extended this constitutional protection to the curtilage of a
person’s home by analyzing “factors that determine whether an
individual reasonably may expect that an area immediately
adjacent to the home will remain private.” Id. at 279.
“Curtilage is entitled to constitutional protection from
unreasonable searches and seizures as a place where the
occupants have a reasonable expectation of privacy that society
is prepared to accept.” Commonwealth v. Fickes, 969 A.2d
1251, 1256 (Pa. Super. 2009).
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Commonwealth v. Simmen, 58 A.3d 811, 815 (Pa. Super. 2012).
Furthermore,
It is within the suppression court’s sole province as factfinder to
pass on the credibility of witnesses and the weight to be given
their testimony. Moreover, with respect to our scope of review
on suppression issues, our Supreme Court has held: “it is
appropriate to consider all of the testimony, not just the
testimony presented at the suppression hearing, in determining
whether evidence was properly admitted.” Commonwealth v.
Chacko, 500 Pa. 571, 459 A.2d 311, 318 n.5 (1983) (emphasis
in original); see also Commonwealth v. Charleston, 16 A.3d
505, 516–518 (Pa. Super. 2011) (collecting cases and explaining
Chacko).
Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (one
citation and some quotation marks omitted).
Preliminarily, here, the learned Majority’s analysis concedes that the
police had probable cause.1 (See Majority, at *13) (e.g., “Sergeant [Robert
J.] Matalavage had probable cause . . . .” and further “[b]ecause probable
cause alone cannot suffice . . . .”). (See also Majority, at *19 n.9) (“even
though [the] police officers had probable cause . . .”). Therefore, the sole
issue remaining for review of Appellant’s challenge to the denial of
suppression is the existence of exigent circumstances. To the extent
____________________________________________
1
Nevertheless, it bears noting that “[p]robable cause justifying a
warrantless arrest is determined by the totality of the circumstances. . . .
Furthermore, probable cause does not involve certainties, but rather the
factual and practical considerations of everyday life on which reasonable and
prudent persons act.” Commonwealth v. Simmen, 58 A.3d 811, 817 (Pa.
Super. 2012) (emphasis added) (citation omitted).
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possible, I limit my discussion to that issue. See Commonwealth v. Lee,
972 A.2d 1, 3 (Pa. Super. 2009).
The learned Majority enumerates the factors to be considered in
determining whether exigent circumstances exist, citing Roland, supra.
(See Majority, at *12, 13).2 For this determination, our Court has observed
that “[a]n analysis of these factors requires an examination of all of the
surrounding circumstances in a particular case. These circumstances will
vary from case to case and the inherent necessities of the situation
at the time must be scrutinized.” Fickes, supra at 1255 (emphases
added) (citation omitted).
In my view, the Majority misapplies our standard and scope of review
by its side-by-side comparison of factors from other cases, as if the factors
from those other cases, like evidence of driving under the influence (DUI),
vel non, constitute a per se checklist against which the denial of suppression
in this appeal must be measured. (See Majority, at 11-18). DUI may be an
____________________________________________
2
The “Roland” factors are taken from Commonwealth v. Wagner, 406
A.2d 1026, 1031 (Pa. 1979), which derived them from Commonwealth v.
Williams, 396 A.2d 1177, 1179-80 (Pa. 1978). Williams borrowed the
seven considerations from Dorman v. United States, 435 F.2d 385, 392
(C.A. D.C. 1970). Our caselaw sometimes refers to the review of the
Roland factors as “Dorman analysis.” See Pennsylvania Criminal
Procedure, Elements, Analysis & Application, Bruce A. Antkowiak, editor, 3 rd
Ed., at 182 n.88.
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example of exigent circumstances. It is not the sine qua non of exigent
circumstances.
To the contrary, on appellate review, as recognized in principle by the
learned Majority, we must accept all the findings of fact made by the trial
court which are supported by the record. (See Majority, at *7-8), (citing
Commonwealth v. Berkheimer, 57 A.3d 171, 177 (Pa. Super. 2012)
(“Where the record supports the findings of the suppression court, we are
bound by those facts and may reverse only if the court erred in reaching its
legal conclusions based upon the facts.”)); see also Fickes, supra at 1255
(requiring “an examination of all of the surrounding circumstances in a
particular case.”) (emphasis added) (citation omitted). We may not re-
weigh the evidence considered by the suppression court. See Clemens,
supra at 378.
However, disregarding these requirements, the Majority concludes that
even “[t]hough the driver of the Subaru hit several parked cars, no evidence
of record exists─and the trial court did not find─that the driver left a ‘trail of
destruction’ on the roadway like the defendant in Fickes.” (Majority, at 17).
Here, in my view, the Majority seeks, by an adverse comparison with the
metaphor borrowed from Fickes, to re-characterize the findings of the trial
court. This checklist comparison approach disregards the “all of the
surrounding circumstances” requirement in favor of an impermissible
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attempt to re-weigh the evidence. It is also unsupported by the record or
controlling authority (or the facts in Fickes).
The Majority also misapprehends the underlying facts on which it
bases its analysis. For example, the Majority maintains that “[h]ere, like
Lee and unlike Fickes, police officers were investigating a hit and run.”
(Majority, at *17) (emphasis added); (see also id., at 13-19). However,
after the introductory paragraph Fickes plainly states: “In the early morning
hours of August 20, 2007, Officer Gary Ross received a dispatch call to
respond to a hit and run accident.” Fickes, supra at 1253 (emphasis
added).
Furthermore, “[i]n so doing [reviewing the findings of the suppression
court], we may consider only the evidence of the prosecution and so much
of the evidence for the defense as remains uncontradicted when read in the
context of the record as a whole.” Berkheimer, supra (citation and
internal quotation marks omitted). Here, Appellant presented no evidence.
(See N.T. Suppression Hearing, 7/03/12, at 43). Therefore, there is no
additional evidence to consider and the evidence of the Commonwealth, read
in the context of the record as a whole, stands uncontradicted.
From my independent review of this case, I would conclude that the
findings of the suppression court are amply supported by the record.
Accordingly, this Court is not at liberty to re-weigh the evidence or disturb
the suppression court’s ruling on the implicit supposition that other facts
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might have made a more compelling case of exigent circumstances for the
Majority.
Similarly, I conclude that the Majority misapprehends the scope and
application of our standard of review, e.g., in its determination that the
gravity of the offense was low (the “first” Roland factor), because the police
were only investigating a report of property damage from a hit-and-run
accident. (See Majority, at 15). In this context, it bears repeating that
“[a]n analysis of these factors requires an examination of all of the
surrounding circumstances in a particular case. These circumstances will
vary from case to case and the inherent necessities of the situation
at the time must be scrutinized.” Fickes, supra at 1255 (emphases
added) (citation omitted). See, e.g., Commonwealth v. Dommel, 885
A.2d 998, 1004 -1005 (Pa. Super. 2005), appeal denied, 920 A.2d 831 (Pa.
2007) (reversing suppression; even though appellant not charged with
violent offenses, his actions in hit-and-run incident indicated either callous
disregard of, or inability to regard at all, both violent automobile collision
which he caused and subsequent official commands to stop. Though
appellant was neither wanted for a felony nor believed to be armed, there
was nevertheless reason under these facts to consider him either chemically
impaired or highly unpredictable and perhaps dangerous; actions thus
warranted immediate pursuit).
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Here, the police were faced not merely with a case of property damage
(the dimensions of which it was impossible to determine before completing
their investigation), but a missing hit-and run driver, (unlike Lee, supra at
2, where the appellant’s wife told the police he was asleep in their house),
who could have been driving under the influence, who might have been
injured from the multiple collisions, who might have been hiding with an
intent to escape into the darkness, even the possibility that there were other
passengers (who also might have been injured in the multiple collisions),
and last but not least, direct evidence of a marijuana growing operation.
Therefore, this case differs factually in many respects from Lee.
Even more importantly, the learned Majority overlooks or ignores that
there is no indication in Lee that the police sought a search warrant. Here,
it is undisputed that the police obtained a search warrant and did not
seize any evidence until the search warrant was executed. (See N.T.
Suppression Hearing, at 13, 31).3
I believe the learned Majority also errs by overlooking the complexity
of the dual investigation the police had to undertake that evening. Exigent
circumstance existed under the “Roland factors” not only because of the
____________________________________________
3
On execution of the warrant, police discovered and seized a large amount
of marijuana inside the toilet bowl, packaging equipment, a scale commonly
used to weigh narcotics, cash in excess of $4,000, several books on growing
marijuana, two long guns (a .22 and a 30-36), a Tec-9 9 mm pistol, and
related items. (See N.T. Suppression Hearing, at 31; see also Order Sur:
Motion to Suppress, Findings of Fact, at 4-5).
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ongoing investigation of the unresolved multiple hit-and-run accidents and
Appellant’s flight, but also because of the subsequent discovery, during the
course of the ongoing hit-and-run investigation, of the evidence of a
marijuana growing operation in plain view.
In the same vein, I respectfully disagree with the Majority’s apparent
lack of regard for the possibility of personal injury as a result of the motor
vehicle accidents. That there was “no evidence that anyone was injured” is
not, and should not be, dispositive. (Majority, at *19).
The more appropriate inquiry is whether, given the limited information
available to the police at that point in time, it was reasonable for them to
consider that someone might have been injured, and possibly required
emergency attention. Officer Christopher Wienczek, as well as Sergeant
Matalavage, so testified: “[B]ased on the amount of damage that was left at
the scene, I didn’t know if the driver was injured or not.” (N.T. Suppression
Hearing, 7/03/12, at 14; see also id. at 18, 28, 39). Furthermore, because
the striking vehicle was not registered to Appellant, there remained the open
possibility that the vehicle was stolen. (See N.T. Suppression Hearing, at
42).
The trial court was entitled to consider all this testimonial evidence
under the totality of the circumstances test. We may not re-weigh the
evidence considered by the suppression court. See Clemens, supra at
378.
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An additional consideration supporting a finding of exigent
circumstances is that, until Appellant reappeared, it was reasonable for the
police to suppose that he might have been hiding, in the house or in the
backyard, and consequently, in the darkness, there was the risk of escape.
See Roland, supra at 270-71 (the fifth “Roland factor”).
Similarly, when Appellant entered his house, flouting the explicit
instructions of the police (who were properly trying to secure the premises in
expectation of the search warrant), locked the front door behind him, and
barricaded himself in the bathroom behind another locked door, it was
imperative that the police take prompt action to avoid the possible
destruction of evidence, (an additional “Roland factor”), which, in the event,
is exactly what Appellant tried to do. (See N.T. Suppression Hearing,
7/03/12, at 10-11, 31). Appellant refused police orders to come out of the
bathroom.4 (See id., at 10). On execution of the search warrant, police
found and recovered a large amount of marijuana inside the toilet bowl.5
(See id., at 31). This was not a mere likelihood that evidence would be
destroyed without immediate police action. Although probable cause is not
____________________________________________
4
The police had to knock the door down and “tase” Appellant to subdue him.
(See Order, Findings of Fact, at 4, ¶ 15; see also Stipulations, supra at 1).
5
Police found a half pound of marijuana in the toilet. (See Stipulations,
supra at 2).
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to be measured by the result, in this case it is a fact that the likelihood
turned out to be a certainty.
To summarize my analysis of the Dorman or Roland factors, the first
factor, gravity of the offense, is satisfied both by the reasonable
apprehension of possible injury as well as discovery of evidence of the
growth and production of marijuana, an even more serious offense than the
hi-and-run incidents; the second factor, suspect reasonably believed to be
armed, does not appear to be satisfied, even though on execution of the
warrant numerous firearms were found in Appellant’s house. The Majority
concedes the third factor, probable cause. With the striking vehicle parked
in Appellant’s driveway, there was some reason to believe that the suspect
was within the premises being entered, the fourth factor. As to the fifth
factor, there was a strong likelihood of escape in the darkness; on the sixth
factor, the first entry was peaceable. As to the seventh factor, whether
entry was made at night, it was.
Of the “additional” Roland factors, I would note that the record
abundantly supports the trial court’s finding that the police were concerned
that Appellant might try to destroy evidence. (See Order, 8/23/12, Findings
of Fact, at 3, 4). And, given Appellant’s unpredictable behavior, the record
supports that there was some danger to police or other persons inside or
outside the dwelling. (See id. at 4 ¶ 15) (Appellant resisted entry by police
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and had to be subdued by Taser before he was arrested and removed); see
also Roland, supra at 271.
Balancing these factors against one another, as our caselaw, including
Roland itself, requires, I would conclude that the pre-warrant intrusions
made by the police were more than amply justified by exigent
circumstances.
I would note specifically that the Majority misapprehends the standard
for hot pursuit and erroneously concludes there was none. (See Majority, at
14-15, 17-18). I respectfully disagree.
The Majority relies on Commonwealth v. Lee, 972 A.2d 1, at 5 (Pa.
Super. 2009), which, as the Majority notes, was quoting Commonwealth v.
Rispo, 487 A.2d 937, at 939 (Pa. Super. 1985):
In significant contrast, “hot pursuit of a fleeing felon” sufficient
to create exigent circumstances for constitutional purposes
requires a showing that “the need for prompt police action is
imperative, either because the evidence sought to be preserved
is likely to be destroyed or secreted from investigation, or
because the officer must protect himself from danger. . . .”
Rispo, 487 A.2d at 939 (quoting Commonwealth v. Holzer,
480 Pa. 93, 102, 389 A.2d 101, 106 (1978)).
Lee, supra at 5.
Rispo, in turn, states:
However, warrantless searches and seizures are
excused where exigent circumstances exist.
Commonwealth v. Montgomery, supra at 376, 371 A.2d at
888. Such circumstances arise “where the need for prompt
police action is imperative, either because evidence sought to be
preserved is likely to be destroyed or secreted from
investigation, or because the officer must protect himself from
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danger to his person by checking for concealed weapons.”
Commonwealth v. Holzer, supra, 480 Pa. [93] at 102, 389
A.2d [101] at 106 [(Pa. 1978)]; Commonwealth v. Hinkson,
supra, 315 Pa. Superior Ct. at 27, 461 A.2d at 618.
Rispo, supra at 939-40 (emphases added). Therefore, it is apparent that
the Lee Court mis-read prior authority’s explication of exigent
circumstances to be the definition, or the equivalent, of hot pursuit. They
are two separate, albeit related, concepts.6
As the enumeration in the footnote establishes beyond dispute, the
Holzer Court treated hot pursuit as one example of exigent circumstances,
not as its equivalent, much less its definition. The Majority’s misreading and
____________________________________________
6
Any doubt of this misunderstanding is resolved by reference to Holzer,
which, in pertinent part, provides:
The warrant requirement, however, is excused where
exigent circumstances exist. Exceptions arise where the
need for prompt police action is imperative, either because
evidence sought to be preserved is likely to be destroyed or
secreted from investigation, or because the officer must protect
himself from danger to his person by checking for concealed
weapons. N.5 Exceptions also arise where the warrantless search
or seizure by a police officer does not amount to a significant
invasion of a defendant’s reasonable expectations of privacy.
These exceptions reflect practical compromises between the
interests of the state in effective law enforcement and the
privacy interests of its citizens.
_____________
FN5. Recognized exceptions in this category include hot
pursuit, emergency situation, incident to lawful arrest and stop
and frisk.
Holzer, supra at 106 (emphases added) (one footnote and citations
omitted).
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reliance on Lee perpetuates this misinterpretation. Exigent circumstances
are not limited to hot pursuit. In any event, my review of the record
confirms that the police here were in hot pursuit and had exigent
circumstances.
The concepts of hot pursuit and fresh pursuit frequently arise in the
context of the Statewide Municipal Police Jurisdiction Act (MPJA), 42
Pa.C.S.A. §§ 8951–8954.7 See, e.g., Commonwealth v. Reigel, 75 A.3d
1284 (Pa. Super. 2013) (holding police officer, acting within his primary
jurisdiction, is authorized to issue citation for summary offense committed in
another jurisdiction). Specifically, sub-section 8953(a)(2) provides that :
Where the officer is in hot pursuit of any person for any
offense which was committed, or which he has probable cause to
believe was committed, within his primary jurisdiction and for
which offense the officer continues in fresh pursuit of the person
after the commission of the offense.
42 Pa.C.S.A. § 8953(a)(2).
Construing the hot and fresh pursuit requirements of section
8953(a)(2), this Court has explained that:
“[H]ot pursuit” requires some sort of chase, but does not require
a “fender-smashing Hollywood-style chase scene” nor “police
observation of the criminal activity.” Furthermore, pursuit of a
suspect may constitute a chase when it is based on witness
information as to the location of the suspect. And “fresh pursuit”
requires that it be immediate, continuous and uninterrupted.
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7
I observe that in this case the actions of the Limerick police were
undertaken to assist the neighboring Royersford police force, where the hit-
and-runs occurred.
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Commonwealth v. Peters, 915 A.2d 1213, 1219 (Pa. Super. 2007),
affirmed, 965 A.2d 222, 225 (Pa. 2009) (citation and some internal
quotation marks omitted). In its affirmance, our Supreme Court further
explained:
While Section 8953(a)(2) requires both “hot pursuit”
and “fresh pursuit” to fulfill the exception to the MPJA, the
statute does not include definitions for either form of pursuit.
However, the Superior Court has defined “hot pursuit” and “fresh
pursuit” under Section 8953 and has consistently applied its
interpretation of each. Here, the panel ably set forth what is
necessary to comply with Section 8953(a)(2). We agree that
“hot pursuit” and “fresh pursuit” require some sort of
investigation and tracking of the perpetrator and that that
pursuit be immediate, continuous and uninterrupted. The facts
here support the panel’s application of these standards to the
instant case and thus confirm its sound findings and conclusion.
Peters, 965 A.2d at 225 (footnote omitted).
Here, similarly, my review of the record confirms that the pursuit of
Appellant on receipt of the radio dispatch was immediate, continuous, and
uninterrupted. The record leaves no doubt that the police were in hot and
fresh pursuit. The Majority’s citation in support of its contrary conclusion is
to Lee. (See Majority, at 14-15). For the reasons already noted, I find that
authority unpersuasive.
Additionally, the Majority’s unsupported conclusion that the passage of
twenty-to twenty five minutes from the original radio dispatch obviates hot
pursuit is unsupported by controlling authority and erroneous. (See
Majority, at *17-18). There is no arbitrary time limit on hot pursuit. To the
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contrary, our Supreme Court and this Court have repeatedly found hot
pursuit despite longer time frames than occurred here. See, e.g., Peters,
supra at 225 (approving approximately one hour pursuit); Fickes, supra at
1253 (thirty seven minutes); Commonwealth v. Brown, 444 A.2d 149,
153 (Pa. Super. 1982) (thirty minutes).
Finally, I would note that the learned Majority’s discussion of curtilage
does not provide an alternative ground of relief for Appellant. (See Majority,
at *9-11).
In determining what constitutes “curtilage,” we consider
“factors that determine whether an individual 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 that society
is prepared to accept.” Simmen, 58 A.3d at 815. See Gibbs,
(holding that front porch did not constitute “curtilage” where
there was no front yard or other enclosed space preceding or
surrounding the porch, the porch abutted the sidewalk, there
was no gate blocking entry to the porch and nothing else that
would indicate that it was closed to members of the general
public).
Johnson, 68 A.3d 930, 936 (Pa. Super. 2013) (emphasis in original)
(concluding exigent circumstances justified police officers’ warrantless entry
into defendant’s trailer; officers who detected odor of burning marijuana
when ascending steps of trailer reasonably believed that defendant might
destroy drugs inside trailer, or otherwise act to frustrate police
investigation).
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It is the Commonwealth’s burden to prove that the search and seizure
is valid. See id. Nevertheless, Appellant’s mere invocation of curtilage does
not end the Fourth Amendment (or Pennsylvania constitutional) inquiry.
(See Appellant’s Brief, at 9-10).
To prevail successfully on a claim of governmental invasion
of privacy, [a]ppellee is required first to show that a subjective
expectation of privacy exists as to the area being searched. An
expectation of privacy is present when the individual, by his
conduct, exhibits an actual (subjective) expectation of privacy
and that the subjective expectation is one that society is
prepared to recognize as reasonable. The controlling
consideration is whether the individual contesting the search and
seizure entertains a legitimate expectation of privacy in the
premises or area searched.
Commonwealth v. Oglialoro, 579 A.2d 1288, 1290-91 (Pa. 1990)
(citations and internal quotation marks omitted); see also Johnson, supra
at 936; Simmen, supra at 815.
Here, aside from citing cases for general principles, Appellant fails to
develop an argument in support of his specific claim, or to support it with
citation to pertinent authority. As already noted, he presented no evidence
at the suppression hearing. No new evidence, except for the stipulations,
was introduced at the stipulated trial. On appeal, he offers no argument in
support of a reasonable expectation of privacy: no gate, no fence, no “No
Trespassing” sign, nor anything else, except to declare that there is “no
doubt” to his claim. (Appellant’s Brief, at 10).
Instead, Appellant cites Commonwealth v. Robbins, 263 A.2d 761
(Pa. Super. 1970) (en banc), a per curiam affirmance of judgment of
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sentence. (See Appellant’s Brief, at 10). In Robbins, Judge Hoffman,
concurring, suggests that marijuana plants found in a wooded area twenty-
five feet from the appellant’s lawn were not within the curtilage. See
Robbins, supra at 761-62. Appellant baldly posits that because his two-
foot marijuana plant and 400 watt light bulbs were right outside his back
door, his case is “unlike in Robbins[.]” (Appellant’s Brief, at 10). I find this
argument undeveloped, without citation to pertinent authority. Accordingly,
I would find Appellant’s curtilage argument waived.
I note that the Majority offers an intermittent, and sometimes
confusing, discussion of curtilage. (See Majority, at 9-11, 13, 14 n.6). In
any event, it is not the role of this Court to develop arguments for a litigant.
“It would be improper for this Court to act as counsel for a party. That is,
we must not write a party’s brief and develop the analysis necessary to
support the party’s position.” Johnson, supra at 936.
Even assuming for the sake of argument that Appellant’s two foot
marijuana plant was within the curtilage of his home, the question still
remains whether the police had exigent circumstances to enter the area
behind his house. Just as the existence of probable cause and exigent
circumstances may excuse an otherwise unconstitutional search of a private
home, they may excuse a search of the curtilage. See Wright, supra at
137-38. Controlling case law extends the protections of the home to the
curtilage. It does not extend greater protection to the curtilage.
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“Curtilage is entitled to constitutional protection from unreasonable
searches and seizures as a place where the occupants have a reasonable
expectation of privacy that society is prepared to accept.” Simmen, supra
at 815 (Pa. Super. 2012), (quoting Fickes, supra at 1256); see also
Oglialoro, supra at 1290-91 (claimant required to show subjective
expectation of privacy as to area searched).
Here, Appellant failed to develop a cognizable claim of reasonable
expectation of privacy. The Majority’s somewhat discursive analysis fails to
refute that the discovery of the two foot marijuana plant and high wattage
cultivation lamps even if found in the curtilage, was justified by exigent
circumstances.
Because the Majority erroneously concludes that there were no exigent
circumstances to enter Appellant’s property, it also errs in its conclusion that
evidence subsequently seized on execution of the search warrant “should
have been suppressed as the fruits of an illegal search.” (See Majority, at
*20). In support, the Majority cites Commonwealth v. Johnson, 86 A.3d
182, 187 (Pa. 2014) (holding trial court properly suppressed physical
evidence seized by police incident to arrest based solely on invalid, expired
arrest warrant). The facts of Johnson are inapposite. This is not a question
of a defective warrant. Johnson plainly does not apply.
Here, there were no fruits of an illegal search. The police had exigent
circumstances to enter Appellant’s property (and curtilage). They sought
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and obtained a warrant. The evidence obtained on the execution of the
search warrant was not tainted. See Commonwealth v. Jackson, 62 A.3d
433, 440 (Pa. Super. 2013) (holding observations of officers lawfully present
in appellant’s home when they observed controlled substances in plain view
supported issuance of search warrant for appellant’s premises; items seized
were legally obtained and admissible as evidence against appellant).8
The police were in hot pursuit, had exigent circumstances to enter,
and properly obtained a search warrant before they seized any materials
previously viewed. The trial court correctly denied suppression.
Accordingly, I respectfully dissent.
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8
As previously noted, I have limited my discussion to the issue of exigent
circumstances. Because I conclude that the police had exigent
circumstances to enter Appellant’s property, it is not necessary to address
whether the evidence seized was also admissible under the plain view
doctrine, or under the inevitable discovery rule. Additionally, I would
remand to the trial court, as it requested, for re-sentencing. I join the
Majority in its conclusion that the Rule 600 claim is not reviewable on the
present state of the record.
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