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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRENCE JOHNSON
Appellant No. 3115 EDA 2014
Appeal from the Judgment of Sentence June 13, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014286-2012
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED FEBRUARY 19, 2016
Terrence Johnson appeals from the judgment of sentence entered on
June 13, 2014, in the Court of Common Pleas of Philadelphia County
following a stipulated bench trial. Johnson was found guilty of possession
with intent to deliver, knowing and intentional possession, possession of a
small amount of marijuana, and possession of drug paraphernalia. 1 He
received an aggregate sentence of five to twelve years’ incarceration. In
this timely appeal, Johnson claims the trial court erred in failing to suppress
physical evidence seized from his residence after the police forcibly entered
it without a warrant. Following a thorough review of the certified record,
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*
Former Justice specially assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(30), (a)(16), (a)(31), and (a)(32), respectively.
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submissions by the parties, and relevant law, we reverse, vacate the
judgment of sentence and remand for a new trial.
Our standard of review for a challenge to the denial of a motion to
suppress evidence is well settled:
We may consider only the Commonwealth's evidence and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where the
record supports the factual findings of the trial court, we are
bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error. An appellate court, of
course, is not bound by the suppression court's conclusions of
law.
Commonwealth v. Williams, 125 A.3d 425, 431-32 (Pa. Super. 2015)
(citation omitted).
We quote the underlying facts of this matter from the trial court
opinion.
On August 10, 2012, Philadelphia police officer Matthew Lally
was in full uniform on routine patrol in a marked vehicle. At
6:00 pm, Officer Lally responded to a radio call for a “founded”
or confirmed, domestic incident for a person with a gun in the
area of Wayne Avenue and Windrim Street in Philadelphia. The
complainant provided the following description to a police officer
who interviewed the complainant in person: black male with a
beard, wearing a black shirt, black pants, and carrying a
firearm.[2] Three to five minutes after receiving the radio
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2
While the trial court’s description is essentially correct, we note Officer
Lally provided two slightly different descriptions of the flash information he
received: (1) “a black male, was wearing all black, with a beard, was
involved in a domestic assault and he was carrying a gun.” N.T. Suppression
Hearing, 11/22/2013, at 7, and (2) “black male, beard, black shirt, black
pants, black shoes.” Id., at 38.
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dispatch, Officer Lally observed [Johnson] sitting on the steps of
4550 Wayne Avenue, which is one and one-half blocks from the
location of where the “founded” domestic incident occurred.
Officer Lally believed that [Johnson] matched the “flash”
information contained in the radio call because of [Johnson’s]
clothing and his proximity to the “founded” call.
Because he believed that [Johnson] met the “flash” information,
Officer Lally made a u-turn with his vehicle and pulled up in front
of [Johnson] without using either the police lights or sirens on
the vehicle. As soon as he pulled up to [Johnson] and while he
was still in the vehicle, Officer Lally requested [Johnson] to
“come here.” At this point, Officer Lally did not brandish his
firearm or otherwise threaten [Johnson]. In response to this
request, [Johnson] stood up, grabbed his waistband and then
ran quickly into the house at 4550 Wayne Avenue. [Johnson]
closed the front door that he entered. Officer Lally and his
partner then exited their vehicle and attempted to enter the
house through the front door that [Johnson] entered, but the
door was locked. Unable to force open the front door, the
officers then ran to the rear of the property and entered the
property by way of an unlocked, outside door of a one-room
apartment. Once they left that room, they entered a common
hallway of the apartment building. As they walked down the
hallway, Officer Lally observed [Johnson] going into Apartment
A1 on the first floor.
Upon observing the police officers, [Johnson] closed and locked
the door to Apartment A1. Officer Lally forced open the door to
Apartment A1. Upon entering the apartment, Lally placed
[Johnson] into custody. After he placed [Johnson] in custody,
Officer Lally observed on the floor a Pennsylvania state
identification card with [Johnson’s] name on it and a photograph
of [Johnson]. In the same room, Officer Lally also observed in
plain view (1) a clear sandwich bag on the floor that contained a
green leafy substance that he immediately recognized as
marijuana based upon his training and experience, and (2) a gun
cleaning kit on a television stand. After conducting a criminal
records check, Officer Lally learned that [Johnson] had an open
warrant for absconding. [Johnson] was held for identification by
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the complaining witness in the domestic incident, but he was
cleared by the complaining witness.[3]
Officer Lally has worked as a police officer in the area that
[Johnson] was arrested for the last 9 years. He considers this
area as a high crime area known for narcotics activity and
arrests for illegal firearms possession. He has personally made
several VUFA arrests in the area and also is aware of numerous
shootings in the area. Additionally, in his experience as a police
officer, Officer Lally typically recovers firearms from the waist
area. Thus, [Johnson’s] grabbing of his waistband led Officer
Lally to believe that [Johnson] was carrying a firearm even
though he did not observe a firearm.
[Johnson’s] counsel called a defense witness who denied that
[Johnson] ran into the house or grabbed his waistband as he was
being pursued by the officers. The defense witness had a prior
conviction for crimen falsi. Based upon both witnesses’
demeanor and manner of testifying and the defense witness’[s]
prior conviction for crimen falsi, the trial court chose to credit
Officer Lally’s testimony and discredit the defense witness’s
testimony.
[Johnson’s] house was searched after Detective Salone obtained
a search warrant. Upon execution of the search warrant,
Detective Salone recovered, inter alia, a Ziploc bag containing
408 grams of crack cocaine, 99 packets of heroin, additional
baggies with marijuana, one packet of crack cocaine, a digital
scale, and unused narcotics packaging.
Trial Court Opinion, 4/7/2015, at 1-3 (citations to record omitted).
The essential question presented for our review is whether the forcible
entry, without a warrant, into Johnson’s apartment was constitutional.4 If
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3
No gun was found in the apartment.
4
Specifically, Johnson’s three arguments are: (1) Did the trial court err in
determining the initial contact between Johnson and the police was a mere
encounter, (2) Did the trial court err in determining the police had a
reasonable suspicion to stop Johnson, and (3) did the trial court err in
(Footnote Continued Next Page)
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the entry was improper, then the trial court erred in failing to suppress the
evidence obtained therein. Initially, we note, “Absent probable cause and
exigent circumstances, warrantless searched and seizures in a private home
violate both the Fourth Amendment and Article 1 § 8 of the Pennsylvania
Constitution.” Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa.
Super. 2014).
Further,
It is well established that “probable cause alone will not support
a warrantless search or arrest in a residence ... unless some
exception to the warrant requirement is also present.... [A]bsent
consent or exigent circumstances, private homes may not be
constitutionally entered to conduct a search or to effectuate an
arrest without a warrant, even where probable cause exists.”
Commonwealth v. Santiago, 736 A.2d 624, 631 (Pa. Super.
1999) (citations omitted; emphasis in original). In
Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269 (1994),
our Supreme Court explained that “[i]n determining whether
exigent circumstances exist, a number of factors are to be
considered”, such as,
(1) the gravity of the offense, (2) whether the suspect is
reasonably believed to be armed, (3) whether there is
above and beyond a clear showing of probable cause, (4)
whether there is strong reason to believe that the suspect
is within the premises being entered, (5) whether there is
a likelihood that the suspect will escape if not swiftly
apprehended, (6) whether the entry was peaceable, and
(7) the time of the entry, i.e., whether it was made at
night. These factors are to be balanced against one
_______________________
(Footnote Continued)
determining the police had probable cause to arrest Johnson and forcibly
enter his residence without a warrant. See Appellant’s Brief, at 7.
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another in determining whether the warrantless intrusion
was justified.[5]
Other factors may also be taken into account, such as whether
there is hot pursuit of a fleeing felon, a likelihood that evidence
will be destroyed if police take the time to obtain a warrant, or
danger to police or other persons inside or outside the dwelling.
Nevertheless, police bear a heavy burden when attempting to
demonstrate an urgent need that might justify warrantless
searches or arrests.
Id. at 600, 637 A.2d at 270-71 (quotations and citations
omitted).
Id., at 793 (Pa. Super. 2014).
Here, based upon the evidence presented at the suppression hearing,
the trial court reasoned the initial contact between the police and Johnson
was a mere encounter. A mere encounter does not require any level of
suspicion or carry any official compulsion to stop or respond. See
Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014). Although the
police did suspect Johnson to have been involved in the domestic
disturbance reported over the police radio, their initial contact with Johnson,
a request to step over to the police car, did not convey a message that
compliance with the request was required. Id. Accordingly, Johnson was
within his rights to ignore the request to speak with the police. Therefore,
we agree with the trial court that the initial contact was a mere encounter.
However, when a person, in a high crime area, such as was described
by Officer Lally, flees without apparent cause from the police, the police may
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5
These are known as the Roland factors.
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briefly detain that person to conduct a Terry6 search. See In re D.M., 781
A.2d 1161, 1164 (Pa. 2001) (“[I]t is evident that unprovoked flight in a high
crimes area is sufficient to create a reasonable suspicion to justify a Terry
stop under the Fourth Amendment.”) A Terry stop allows the police, under
the totality of the circumstances and with reasonable belief, to search a
person to determine whether that person is armed. This represents an
investigative detention. Pursuant to D.M., the unprovoked flight in a high
crime area provides the reasonable suspicion of criminal activity needed to
conduct an investigative detention.
Nonetheless, the trial court commented, “In response to Officer Lally’s
request for [Johnson] to speak to him, [Johnson] engaged in unprovoked
flight, which, as discussed below, gives rise to probable cause to arrest
him.” Trial Court Opinion, 4/7/2015, at 5 (emphasis added). D.M. and
subsequent case law specifically limit police response to unprovoked flight to
conducting a brief investigative detention, not to arrest. The trial court’s
conclusion that Johnson’s retreat into his apartment building gave rise to
probable cause to arrest him is, accordingly, an error of law.
The trial court also determined that the totality of the circumstances
gave the police probable cause to believe Johnson was armed. In support,
the trial court cited the following cases:
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6
Terry v. Ohio, 392 U.S. 1 (1981).
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Commonwealth v. Taggart, 997 A.2d 1189 (Pa. Super. Ct.
2010) (an officer’s observation of an individual carrying a
handgun on public streets in the city of Philadelphia gives rise to
probable cause for an arrest); and Commonwealth v.
Bowmaster, 101 A.3d 789 (Pa. Super. Ct. 2014) (stating in
dicta that (1) a reliable tip from a known source, and (2) the
belief that defendant was in possession of a firearm provided
probable cause).
Trial Court Opinion, at 7.
We find both of these cases are distinguishable and neither provides
support for a warrantless forced entry into a residence. In Taggart, the
police actually observed the defendant in possession of a gun. Here, the
police specifically denied seeing Johnson possess a gun. Rather, the police
had a reasonable suspicion Johnson was armed, which would have allowed
them to conduct a Terry stop, but not to arrest him. In Bowmaster, the
tip from the reliable source was what provided the reasonable belief the
defendant possessed a stolen weapon. Additionally, in Bowmaster, not
only did the tipster affirmatively state he had seen the stolen gun, there was
no question about the identity of the suspect. As stated in dicta, this gave
rise to probable cause to obtain a search warrant for the residence, not to
arrest Bowmaster. Significantly, Bowmaster held that the information
possessed by the police was insufficient to support a warrantless nighttime
entry into Bowmaster’s residence.
Beyond the lack of probable cause, the police also lacked exigent
circumstances. Initially, we remember that the “police bear a heavy burden
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when attempting to demonstrate an urgent need that might justify
warrantless searches or arrests.” Bowmaster, supra.
Accordingly, we examine the Roland factors. (1) The nature of the
crime. The flash report indicated only that the alleged victim was assaulted
in some manner and that the perpetrator had a gun. There is no indication
the perpetrator used the gun in the assault or threatened the alleged victim
with the gun. (2) Reasonable belief the suspect is armed. The police
possessed a reasonable suspicion that Johnson was armed based upon the
flash report and his actions in adjusting his waist band. (3) Was there an
above and beyond a clear showing of probable cause. The evidence
presented at the suppression hearing would have allowed the police to
conduct a Terry stop and to conduct an investigative detention to determine
if the alleged victim could identify Johnson as her assailant. This does not
equate to above and beyond a clear showing of probable cause either to
arrest Johnson or to search his residence. (4) Was there a strong reason to
believe Johnson was in the premises. The police witnessed Johnson entering
the apartment. They absolutely knew he was within the premises. (5) Was
there a likelihood Johnson would escape. The trial court merely stated
Johnson could have escaped, but set forth no facts to support that
determination. The evidence demonstrated the police were standing outside
the only door out of the apartment. The evidence showed no reason why
someone could not have stood outside to make sure Johnson did not climb
out a window. (6) Was the entry peaceable. The entry was not peaceable.
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Officer Lally testified he did not knock on the door and request entry. He did
not explain why they wanted to talk to Johnson. Officer Lally simply forced
his way into the apartment, breaking through a locked door. (7) Was the
entry at night. The entry was affected in the evening.
Pursuant to Bowmaster, the trial court also considered these: (1) was
there hot pursuit of a fleeing felon, and (2) was there a likelihood evidence
would be destroyed. The trial court noted the officers were in hot pursuit.
However, as noted above, there was no clear indication a felony had been
committed. The evidence presented at the suppression hearing indicated no
probable cause to arrest Johnson, but only reasonable suspicion to conduct a
Terry stop. Next, the trial court stated, without reference to the record,
that the suspected firearm was likely to be hidden or destroyed.7 Whether
the evidence might be hidden is not a factor to be considered; proper
consideration is given to whether the evidence might be destroyed. See
Bowmaster, supra. The record is silent as to how Johnson might have
destroyed the suspected handgun while in his room.
The trial court also noted concern for the safety of others. However,
there was no evidence the perpetrator of the alleged assault threatened the
victim with the gun. Johnson did not threaten the police in any manner,
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7
This is all hypothetical, as there was no gun.
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much less with a gun. There was no evidence of any other person within the
premises who may have been in danger, had Johnson been armed.
The evidence viewed in the light most favorable to the Commonwealth
indicates that the police had reasonable suspicion to briefly detain Johnson
to see if the alleged victim of the assault could identify him as her assailant
and to frisk him to see if he was armed. The police had no probable cause
to arrest Johnson. We also conclude there were no exigent circumstances to
overcome the constitutional requirement to obtain a search warrant.
Accordingly, we do not believe the evidence is sufficient to meet the heavy
burden of demonstrating an urgent need to conduct a warrantless forced
entry in Johnson’s residence. As such, the trial court erred in denying
Johnson’s motion to suppress evidence. All of the evidence obtained from
Johnson’s apartment was fruit of the poisonous tree and was inadmissible. 8
Because the evidence obtained from Johnson’s apartment was the only
evidence against him, judgment of sentence against Johnson cannot stand.
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
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8
“Evidence obtained as a result of an unlawful search is subject to the fruit
of the poisonous tree doctrine. The United States Supreme Court has stated
that any material, tangible, or verbal evidence “obtained either during or as
a direct result of an unlawful invasion” is inadmissible at trial. Wong Sun v.
United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).”
Commonwealth v. Loughnane, ___ A.3d ___, 2015 PA Super 245, at *7
(11/23/2015).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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