Com. v. Hughes, B.

J-S75035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN SCOTT HUGHES, :
:
Appellant : No. 741 WDA 2017

Appeal from the Judgment of Sentence April 25, 2017
in the Court of Common Pleas of Mercer County,
Criminal Division at No(s): CP-43-CR-0001370-2016,
CP-43-CR-0001372-2016

BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 27, 2018

Brian Scott Hughes (“Hughes”) appeals from the judgment of sentence

imposed following his convictions of two counts of possession of drug

paraphernalia, and one count each of possession with intent to manufacture

a controlled substance, possession of a controlled substance, possession of

ephedrine, liquefied ammonia gas; precursors and chemicals, operating a

methamphetamine laboratory, risking catastrophe, and recklessly

endangering another person.1 We affirm.

The suppression court set forth the relevant factual and procedural

history in its Order denying Hughes’s Motion to suppress, which we adopt for

the purpose of this appeal. See Trial Court Order, 1/25/17, at 1-6.

____________________________________________

1 See 35 P.S. §§ 780-113(a)(32), 780-113(a)(30), 780-113(a)(16), 780-
113(a)(39), 780-113.1, 780-113.4(a)(1); 18 Pa.C.S.A. §§ 3302(b), 2705.
J-S75035-17

On December 30, 2016, Hughes filed a nunc pro tunc Motion to

suppress evidence recovered from his hotel room after the initial search by

Agent Gary Double (“Agent Double”) of the Board of Probation and Parole,

and the second search by the Hermitage Police Department. The

suppression court conducted a hearing, and subsequently denied Hughes’s

Motion to suppress.

Following a jury trial, Hughes was convicted of the above-mentioned

crimes. The trial court deferred sentencing and ordered a pre-sentence

investigation report (“PSI”). Subsequently, the trial court sentenced Hughes

to an aggregate term of 2½ to 10 years in prison, with credit for time

served. Hughes filed a Motion to Modify Sentence. The trial court denied

Hughes’s Motion to Modify Sentence. Hughes filed a timely Notice of Appeal

and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

On appeal, Hughes raises the following questions for our review:

1. Whether the suppression court erred when it admitted
evidence found from a search done by [Agent Double] that led to
additional evidence found in a search done by the Hermitage
Police Department[?]

2. Whether the trial court erred when it denied Hughes’[s]
Motion for judgment of acquittal when the Commonwealth
clearly failed to produce sufficient evidence to prove the element
of possession in regard to the charge of operating a
methamphetamine laboratory and related charges thereof[?]

3. Whether the trial court erred when it issued a clearly
unreasonable sentence to Hughes for operating a
methamphetamine laboratory[,] resulting in a 1½ year to 8 year

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J-S75035-17

state penitentiary sentence[,] and for risking a catastrophe[,]
resulting in a 1 year to 2 year concurrent[2] state penitentiary
sentence in violation of a fundamental norm where a sentence of
confinement should address a defendant’s rehabilitative needs[?]

Brief for Appellant at 9-10 (issues numbered; some capitalization omitted;

footnote added).

In his first claim, Hughes argues that the suppression court erred by

allowing the admission of evidence obtained during the search by Agent

Double, and the second search by police. Id. at 23. Regarding the search

by Agent Double, Hughes claims that because Agent Double arrived at the

hotel to determine whether Hughes had violated his parole by moving

without first obtaining permission, “[t]he possible parole violation was moot

upon confirming that Hughes[] was still at his approved residence[.]” Id. at

25. Hughes contends that the subsequent weapons pat-down search

performed by Agent Double “was nothing more than a ploy to find a

violation[,] and not reasonabl[y] related to the initial suspected violation.”

Id. at 26.

Regarding the subsequent police search of the hotel room, Hughes

argues that he had a reasonable expectation of privacy in his concealed

personal effects (i.e., the duffle bag and plastic water bottle found under the

____________________________________________

2 We note that Hughes incorrectly states throughout his brief that he
received concurrent sentences for his operating a methamphetamine
laboratory and risking catastrophe convictions. In fact, the trial court
imposed consecutive sentences for these convictions. See Sentencing
Order, 4/25/17, at 1-2.

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J-S75035-17

box spring). Id. at 27. Hughes contends that the discovery of the illegal

items by the police was the result of the hotel staff’s search, and that “[t]he

hotel staff had no justification to examine the contents of the bag found in

the room.” Id. at 28.

In reviewing the denial of a motion to suppress, our
responsibility is to determine whether the record supports the
suppression court’s factual findings and legitimacy of the
inferences and legal conclusions drawn from those findings. If
the suppression court held for the prosecution, we consider only
the evidence of the prosecution’s witnesses and so much of the
evidence for the defense as, fairly read in the context of the
record as a whole, remains uncontradicted. When the factual
findings of the suppression court are supported by the evidence,
the appellate court may reverse if there is an error in the legal
conclusions drawn from those factual findings.

Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation

omitted).

The suppression court previously considered both of Hughes’s

arguments in its Order denying Hughes’s Motion to suppress. See Trial

Court Order, 1/25/17, at 6-14. Regarding the search by Agent Double, the

suppression court set forth the relevant law concerning searches of a

parolee’s person and property, addressed Hughes’s argument, and

concluded that the search was supported by reasonable suspicion that

Hughes possessed contraband or other evidence of violations of the

conditions of his supervision. See id. at 6-11. Regarding the police search,

the suppression court set forth the relevant law, addressed Hughes’s

argument, and concluded that any privacy interest Hughes may have had in

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J-S75035-17

his personal effects, after he had checked out, was outweighed by the

exigent circumstances created by the “notoriously dangerous process” of

clandestine methamphetamine production. See id. at 11-14. We agree

with the suppression court’s determinations, which are supported by the

record and free of legal error, and affirm on this basis as to Hughes’s first

issue. See id. at 6-14.

In his second claim, Hughes contends that there was insufficient

evidence to support his convictions of possession with intent to deliver3 a

controlled substance and operating a methamphetamine laboratory because

the Commonwealth did not establish the element of possession. Brief for

Appellant at 29. Hughes argues that “[t]here was no evidence produced to

show that Hughes was the owner of the bag, that he knew the bag was

present under his bed and that he was an active participant in the making of

methamphetamines.” Id. at 32. Hughes additionally claims that there was

no testimony regarding when the methamphetamine laboratory would have

been active. Id. Hughes claims that “the Commonwealth’s evidence was so

weak as to the issue of possession that the [t]rial [c]ourt should have

granted Hughes[’s] Motion for Judgment of Acquittal on a majority of the

charges where possession was a key element.” Id.

____________________________________________

3 We observe that Hughes’s conviction under 35 P.S. § 780-113(a)(30) was
for possession with intent to manufacture a controlled substance.

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J-S75035-17

The standard we apply in reviewing the sufficiency of the
evidence is whether, viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact, while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.

Commonwealth v. Furness, 153 A.3d 397, 401 (Pa. Super. 2016) (citation

and brackets omitted).

Section 780-113(a)(30) of The Controlled Substance, Drug, Device

and Cosmetic Act (“the Act”) prohibits the following acts:

[T]he manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a person not
registered under this act, or a practitioner not registered or
licensed by the appropriate State board, or knowingly creating,
delivering or possessing with intent to deliver, a counterfeit
controlled substance.

35 P.S. § 780-113(a)(30). The Act defines “manufacture” as “the

production, preparation, propagation, compounding, conversion or

processing of a controlled substance….” Id. § 780-102.

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J-S75035-17

The Act defines the offense of operating a methamphetamine

laboratory as follows:

A person commits the offense of operating a methamphetamine
laboratory if the person knowingly causes a chemical reaction
involving ephedrine, pseudoephedrine or phenylpropanolamine,
or any other precursor or reagent substance under section
13.1,[FN] for the purpose of manufacturing methamphetamine or
preparing a precursor or reagent substance for the manufacture
of methamphetamine.

[FN]: 35 P.S. § 780-113.1.

Id. § 780-113.4(a)(1). Section 780-113.1 prohibits the possession of the

above-mentioned substances with the intent to unlawfully manufacture a

controlled substance.4 See id. § 780-113.1.

Hughes challenges the sufficiency of the evidence only as it relates to

his possession of the duffle bag found under the bed. Where, as here, “the

contraband is not discovered on the defendant’s person, the Commonwealth

may satisfy its evidentiary burden by proving that the defendant had

constructive possession of the drug.” Commonwealth v. Vargas, 108 A.3d

858, 868 (Pa. Super. 2014).

Constructive possession is a legal fiction, a pragmatic construct
to deal with the realities of criminal law enforcement.
Constructive possession is an inference arising from a set of
facts that possession of the contraband was more likely than not.
We have defined constructive possession as “conscious
dominion.” We subsequently defined “conscious dominion” as
“the power to control the contraband and the intent to exercise
____________________________________________

4Hughes does not specifically challenge his conviction under 35 P.S. § 780-
113.1.

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J-S75035-17

that control.” To aid application, we have held that constructive
possession may be established by the totality of the
circumstances.

Commonwealth v. Roberts, 133 A.3d 759, 767-68 (Pa. Super. 2016)

(citation omitted); see also Vargas, 108 A.3d at 868 (stating that

“circumstantial evidence may be used to establish a defendant’s possession

of drugs or contraband.” (citation omitted)).

Here, Roberta Betts (“Betts”), an assistant housekeeper at the Quality

Inn, testified that she entered Hughes’s room on July 7, 2016, after he had

checked out, to perform a “deep clean.” See N.T., 2/15/17, at 24. Betts

stated that she removed all of the bedding, including the bed skirt, from the

room’s only bed. See id. at 25. Betts testified that when she adjusted the

box spring, she noticed a jar containing clear liquid and brown pellets under

the left box spring. See id. Betts also noticed a duffel bag containing a

black bowl, brown pellets in a plastic bag, something that “looked like

Drano,” and a bag containing white powder. See id. at 25, 31; see also id.

at 30-31 (wherein Betts testified that the top of the duffle bag was open

when she found it, and the bag’s contents were in plain view). Betts called

the front desk to report what she had found, and was instructed to leave the

room. See id. at 31-32. Betts testified that, to her knowledge, no other

staff members entered Hughes’s room before the police arrived. See id. at

32-33.

Deborah Donella (“Donella”), the general manager of the Quality Inn,

testified that Hughes had checked into the Quality Inn on June 5, 2016. See

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J-S75035-17

id. at 49. Donella stated that Hughes was the only individual identified on

the room lease, and he had paid for the room through July 11, 2016. See

id. at 43, 45. Donella testified that Hughes had checked out at 11:22 a.m.

on July 7, 2016. See id. at 43. Additionally, Donella testified that she did

not enter Hughes’s room after he had checked out, until she entered with

police officers. See id. at 45.

Corporal Dennis Ulery (“Corporal Ulery”), the coordinator for the

Pennsylvania State Police Clandestine Laboratory Response Team (“CLRT”),

testified that the most common method of making methamphetamine is

known as the “one-pot” or “shake-and-bake” method, which involves the use

of a plastic bottle. See id. at 67-68. Corporal Ulery stated that on July 7,

2016, he was dispatched to the Quality Inn in Hermitage with the CLRT and

met with members of the Hermitage Police Department, who informed him

that there was a suspected meth lab in a room on the second floor. See id.

at 71-72. Corporal Ulery testified that, in his opinion, the items recovered

from Hughes’s hotel room (i.e., lithium batteries, pliers, solvent, ammonium

nitrate, which was removed from the cold pack package and placed in a

plastic bag, drain cleaner, and a bottle) evidenced a clandestine

methamphetamine laboratory. See id. at 78-80; see also id. at 79

(wherein Corporal Ulery stated that “[t]hese items [] really have no reason

to be together unless they are going to be used for a meth cook.”).

In its Rule 1925(a) Opinion, the trial court considered Hughes’s claim,

and concluded that, “[g]iven the length of time [Hughes] was in the room,

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J-S75035-17

given that he was the sole person named on the lease, and given [that] he

was the only one in the room the day the contraband was found,” there was

“ample circumstantial evidence to conclude beyond a reasonable doubt that

[Hughes] possessed the contraband.” Rule 1925(a) Opinion, 6/6/17, at 6.

Upon review, we agree that the totality of the circumstances supports the

finding that Hughes was in constructive possession of the contraband found

in his hotel rom. Accordingly, Hughes is not entitled to relief on his second

claim.
In his third claim, Hughes asserts that his sentence is “clearly

unreasonable and against the fundamental norms of sentencing.” Brief for

Appellant at 33. Hughes claims that he should have received a mitigated

sentence because his “actual possession of the materials found in the hotel

room was highly speculative[.]” Id. at 36.

Hughes’s claim challenges the discretionary aspects of his sentence,

from which there is no automatic right to appeal. See Commonwealth v.

Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010). Prior to reaching the

merits of a discretionary sentencing issue,

[this Court conducts] a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

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J-S75035-17

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

Here, Hughes filed a timely Notice of Appeal, as well as a post-

sentence Motion to Modify Sentence. Hughes also included a separate Rule

2119(f) Statement in his brief. Accordingly, we will review Hughes’s Rule

2119(f) Statement to determine whether he has raised a substantial

question.

The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.

Moury, 992 A.2d at 170. Our inquiry “must focus on the reasons for which

the appeal is sought, in contrast to the facts underlying the appeal, which

are necessary only to decide the appeal on the merits.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).

Additionally, this Court “cannot look beyond the statement of questions

presented and the prefatory 2119(f) statement to determine whether a

substantial question exists.” Commonwealth v. Provenzano, 50 A.3d

148, 154 (Pa. Super. 2012).

In his Rule 2119(f) Statement, Hughes concedes that he received a

standard-range sentence for both convictions. Brief for Appellant at 21-22.

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J-S75035-17

However, Hughes cites to Section 9781(c)(2) of the Sentencing Code,5 and

again argues that his “knowledge and actual possession of the materials

found in the hotel room was highly speculative at the close of the

Commonwealth’s case.” Id. at 22.

While Hughes cites Section 9781(c)(2), he has failed to explain why he

believes his standard-range sentence is unreasonable in light of the

circumstances of this case. See Commonwealth v. Goggins, 748 A.2d

721, 727 (Pa. Super. 2000) (en banc) (stating that “where a defendant

merely asserts that his sentence is inconsistent with the Sentencing Code or

contrary to the fundamental norms underlying the sentencing scheme

without explaining how or why, we cannot determine whether he has raised

a substantial question.”); id. (explaining that in addition to specifying

“where the sentence falls in relation to the sentencing guidelines and what

particular provision of the Code is violated,” an appellant’s “Rule 2119(f)

____________________________________________

5 Section 9781 provides, in relevant part, as follows:

(c) Determination on appeal.--The appellate court shall
vacate the sentence and remand the case to the sentencing
court with instructions if it finds:

***

(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable[.]

42 Pa.C.S.A. § 9781(c)(2).

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J-S75035-17

statement must specify what fundamental norm the sentence violates and

the manner in which it violates that norm”). Instead, Hughes appears to

rely on his challenge to the sufficiency of the evidence. We conclude that

Hughes has not raised a substantial question that his standard-range

sentence is inappropriate or contrary to a fundamental norm underlying the

Sentencing Code, and we will not address the merits of his final claim.6

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2018

____________________________________________

6 Moreover, where, as here, the trial court had the benefit of a PSI, this
Court will presume that the trial court was aware of, and considered all
relevant factors, and “[h]aving been fully informed by the [PSI], the
sentencing court’s discretion should not be disturbed.” Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988). Additionally, during the sentencing
hearing, the trial courted noted the seriousness of Hughes’s crimes, and “the
life-threatening qualities of the gases which are produced during making
meth….” N.T., 4/25/17, at 16.

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 Circulated 01/31/2018 03:56 PM

IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA
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AND NOW, this 25 day of January, 2017, before the Court is Defendant Brian Scott

Hughes' ("Defendant's") December 30, 2016 motion to suppress evidence of two searches

stemming from the same incident on July 7, 2016. For the foregoing reasons, the Court

DENIES the motion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY:

The Court took testimony on January 4, 2017, and made the following factual findings

relevant to the present disposition:

In mid-June of 2016, Agent Gary Double of the Pennsylvania Board of Probation and

Parole was supervising the Defendant, who was staying at the Quality Inn in Hermitage,

Pennsylvania. Based upon a series of phone calls with the Defendant, Agent Double knew

that the Defendant had the intention of relocating to the New Castle City Mission in New

Castle, Pennsylvania, but did not give Agent Double a specific date. Agent Double told the

Defendant that the Defendant needed to inform Agent Double if the Defendant actually

decided to change his residence. By July 7, 2016 Agent Double had not heard from the

1
Defendant for a week, so Agent Double visited the Quality Inn in Hermitage to check in on

the Defendant. Agent Double went to the Defendant's room and the Defendant invited

Agent Double to enter. As soon as Agent Double started to interact with the Defendant,

Agent Double noticed a change in the Defendant's demeanor and behavior from Agent

Double' s previous interactions with the Defendant. Before that date, Agent Double testified

that the Defendant had a positive attitude and was open with Agent Double. But on this

occasion, the Defendant was sullen, depressed, would not look Agent Double in the eye, and

only provided cursory and brief answers to Agent Double's questions.

Agent Double asked the Defendant to sit down on the bed, and noticed a beer can on a

table in the room. Agent Double asked the Defendant if he had been drinking, which the

Defendant denied at first, but eventually admitted to having a couple of beers. The

consumption of alcohol was contrary to Defendant's parole/probation conditions. Agent

Double asked the Defendant to retrieve his parole/probation paperwork, and the Defendant

began to search in a black backpack on a nearby table, but was unable to find the paperwork.

When Agent Double asked the Defendant to retrieve his parole/probation paperwork, Agent

Double again noticed that the Defendant was not actively cooperating, continued to give

one-word answers, and was acting very differently from how the Defendant had previously

acted around Agent Double.

Based upon this significant change in demeanor, Agent Double testified that he was

concerned for his safety and decided to perform a weapons pat-down of the Defendant's

person. At first, the Defendant did not comply with Agent Double's request to place his

hands behind his head, but eventually did so after another request from Agent Double. The

Agent first patted-down the Defendant at his waistband, then reached into the Defendant's

2
pants pocket. When Agent Double reached into the Defendant's pants pocket, he found a

syringe and a glass pipe typically used for smoking marijuana, with what appeared to be

marijuana residue on the inside. Agent Double also found baggies and pieces of paper on

the Defendant, with what he believed to be heroin residue on the inside.

At that point, Agent Double placed the Defendant under arrest, put handcuffs around his

wrists, and called for backup from the Board of Probation and Parole and the Hermitage

Police Department. After handcuffing the Defendant, Agent Double searched the black book

bag and found a large plastic bag with a smaller plastic bag inside of it, which contained

what Agent Double believed to be marijuana seeds. Hermitage Police Officer Samuel

Staples arrived at the scene around 10:30 am and indicated that the Hermitage Police would

be charging the Defendant and Agent Double took the Defendant to the Mercer County Jail.

The suspected heroin residue was field-tested and came back positive for methamphetamine.

Later that day, Hermitage Police Officer James Brown was dispatched to the Quality Inn

in Hermitage to speak to management about suspected drugs that had been found in a bag in

· the Defendant's room. The Defendant's period of occupancy expired between the time

Agent Double transported the Defendant to the Mercer County Jail and when Officer Brown

Arrived. Officer Brown testified that he had previously worked for the Mercer County Drug

Task Force where he had been trained on how to identify the presence of clandestine

methamphetamine production, and the common materials and chemicals associated with the

processes such as household cleaners, plastic bottles, tubes, emptied cold packs, batteries,

and tools to create such an operation. The hotel staff told Officer Brown that only the

housekeeper had been in the Defendant's room since the Defendant had left, and the

housekeeper found a suspicious bag and bottle. Management let Officer Brown into the

3
room and showed him that under the box spring of the mattress was a silver duffel bag and

a plastic water bottle containing a cloudy pink substance. Officer Brown testified that as

soon as he came into the room, he smelled what he described as a chemical smell which

resembled nail polish remover or ether.

Prior to this incident, Officer Brown had worked for the Mercer County Drug Task Force

where he had been made aware of "one-pot meth labs" ( or clandestine methamphetamine

production) and common signals that one may be near including smells and materials.

Believing that this water-bottle was indeed being used to create methamphetamine, a very

dangerous process with a high risk of fire or explosion, he immediately contacted the

Pennsylvania State Police Clandestine Laboratory Response Team ("CLRT"), the Hermitage

Fire Department, and ordered everyone out of the room. At no point did he touch any of the

materials due to the dangerous nature of the chemicals.

The CLRT team arrived at approximately 5:30 pm and spoke with Officer Brown about

what he had seen and smelled. The CLRT team determined that the water bottle was being

used for the production of methamphetamine, and safely cleared the threat. At that point,

Officer Brown looked into the bag and saw beads from a cold pack, other bottles with holes

in the top of them, rubber hoses, batteries, and tools: all items associated with "one-pot meth

labs". Commonwealth's Exhibit 1 is a photograph of the bag and some of its contents, and

Officer Brown testified that the picture accurately depicted what he had observed.

At 13 72 CR 2016, the Commonwealth submitted a police criminal complaint and

affidavit of probable cause on July 11, 2016. On October 17, 2016, the Commonwealth

submitted its criminal information, which charged defendant with Possession of a Controlled

4
 Substance', and Possession of Drug Paraphernalia2 stemming from the initial search by

Agent Double and Officer Staples.

At 13 70 CR 2016, the Commonwealth submitted a police criminal complaint and

affidavit of probable cause on July 25, 2016. On October 17, 2016, the Commonwealth

submitted its criminal information which charged the Defendant with Manufacture,

Delivery, or Possession with intent to Manufacture or Deliver a Controlled Substance3,

Liquefied Ammonia Gas: Precursors and Chemicals", Operating a Methamphetamine

Laboratory and Illegal Dumping of Methamphetamine Waste5, Risking Catastrophe6,

Recklessly Endangering Another Person7, Possession of a Controlled Substance8, Possession

of Drug Paraphernalia9, and Knowingly Possessing Ephedrine!", These charges stemmed

from the recovery of the clandestine methamphetamine laboratory after Defendant's initial

arrest.

On November 28, 2016 the Defendant entered a plea of no contest at 1370 CR 2016 to

Operating a Methamphetamine Laboratory and Illegal Dumping of Methamphetamine

· Waste (35 Pa.C.S. § 780-113.4(a)(l)) and Recklessly Endangering another Person (18

Pa.C.S. § 2705) and the Commonwealth nol prossed the balances of the charges at both

docket numbers pursuant to the plea agreement. On December 8, 2016 after receiving a

1
35 Pa.C.S. § 780-l 13(a)(l6).
2
35 Pa.C.S. § 780-l 13(a)(32).
3
35 Pa.C.S. § 780-l 13(a)(30).
4
35 Pa.C.S. § 780-l 13.l(a)(3).
5
35 Pa.C.S. § 780-l 13.4(a)(l).
6
18 Pa.C.S. § 3302(b).
7
18 Pa.C.S. § 2705.
8
35 Pa.C.S. § 780-l 13(a)(16).
9
35 P.S. § 780-l 13(a)(32).
10
35 Pa.C.S. § 780-l 13(a)(39).

5
request from the Defendant to withdraw his guilty plea, the Court entered an order

withdrawing the plea and reinstating the charges at both pleas and docket numbers.

On December 30, 2016, the Defendant submitted a nunc pro tune motion to suppress

evidence which is now before this Court. In his motion to suppress, and at the evidentiary

hearing held on January 4, 2017, the Defendant argued that the search of his hotel room was

unconstitutional because the agents did not have reasonable suspicion to conduct the search

of the hotel room. Regarding the second search, the Defendant argues that it was the fruit

of an illegal search, and/or the search was performed without a warrant.

To address the Defendant's first suppression issue, the court quotes at length from a

recent Superior Court decision, Commonwealth v. Parker, --A.3d-- (Pa. Super 2016), 340

MDA 2016 (December 12, 2016), which clearly delineates the relevant rules and procedures

for the search of a probationer's/parolee's residence:

The aim of probation and parole is to rehabilitate and reintegrate a
lawbreaker into society as a law-abiding citizen. Commonwealth v.
Chambers, 55 A.3d 1208, 1212 (Pa. Super. 2012). The institution of
probation and parole assumes a probationer or parolee is more likely than the
ordinary citizen to violate the law. Commonwealth v. Moore, 805 A.2d 616,
619 (Pa. Super. 2002). Consequently, probationers and parolees have limited
Fourth Amendment rights because of a diminished expectation of privacy.
Id. See also Chambers, supra (stating probationers' and parolees' Fourth
Amendment constitutional rights are virtually indistinguishable). This Court
explained that probation officers, like parole officers:

[A]re in a supervisory relationship with their offenders. The
purpose of this supervision is to assist the offenders in their
rehabilitation and reassimilation into the community and to
protect the public. Supervision practices shall reflect the
balance of enforcement of the conditions of parole and case
management techniques to maximize successful parole
completion through effective reentry to society. As such,
probationers and parolees are subject to general and individual
rules of conduct and supervision described at sentencing
and/or in the parole agreement.

6
Commonwealth v. Smith, 85 A.3d 530, 536 (Pa. Super. 2014) (internal
citations and quotation marks omitted).
The statute governing the supervisory relationship between probation
officers and probationers and the concomitant rights of the probationers, in
effect at the time of the search in this case, provided in relevant part:

§ 9912. Supervisory relationship to offenders

(a) General rule.-Officers are in a supervisory relationship
with their offenders. The purpose of this supervision is to
assist the offenders in their rehabilitation and reassimilation
into the community and to protect the public.

(b) Searches and seizures authorized.-

(1) Officers and, where they are responsible for the
supervision of county offenders, State parole agents may
search the person and property of offenders in accordance
with the provisions of this section.
***
(c) Effect of violation.-No violation of this section shall
constitute an independent ground for suppression of evidence
in any probation and parole or criminal proceeding.

( d) Grounds for personal search.-

(1) A personal search of an offender may be conducted by
an officer:

(i) if there is a reasonable suspicion to believe that the
offender possesses contraband or other evidence of
violations of the conditions of supervision;

(ii) when an offender is transported or taken into
custody; or

(iii) upon an offender entering or leaving the securing
enclosure of a correctional institution, jail or detention
facility.

(2) A property search may be conducted by an officer if
there is reasonable suspicion to believe that the real or
other property in the possession of or under the control of
the offender contains contraband or other evidence of
violations of the conditions of supervision. [Emphasis
removed from Parker].

7
(3) Prior approval of a supervisor shall be obtained for a
property search absent exigent circumstances. No prior
approval shall be required for a personal search.

( 4) A written report of every property search conducted
without prior approval shall be prepared by the officer
who conducted the search and filed in the offender's case
record. The exigent circumstances shall be stated in the
report.

(5) The offender may be detained if he is present during a
property search. If the offender is not present during a
property search, the officer in charge of the search shall
make a reasonable effort to provide the offender with
notice of the search, including a list of the items seized,
after the search is completed.

(6) The existence of reasonable suspicion to search shall
be determined in accordance with constitutional search
and seizure provisions as applied by judicial decision. In
accordance with such case law, the following factors,
where applicable, may be taken into account:

(i) The observations of officers.

(ii) Information provided by others.

(iii) The activities of the offender.

(iv) Information provided by the offender.

(v) The experience of the officers with the offender.

(vi) The experience of officers in similar
circumstances.

(vii) The prior criminal and supervisory history of the
offender.

(viii) The need to verify compliance with the
conditions of supervision.

***

8
 42 Pa.C.S.A. § 9912(a), (b)(l), (c), (d) (effective October 13, 2009 to
September 18, 2016) (emphasis added).

[Footnote 5: The legislature amended this statute on July 20,
2016, effective in 60 days. The current version of the statute
contains substantially similar language. See 42 Pa.C.S.A. §
9912 (amended July 20, 2016; effective September 19, 2016).]

See also 42 Pa.C.S.A. § 9913 (explaining probation officer is declared to be
peace officer and shall have police powers and authority to arrest, with or
without warrant, writ, rule or process, any person on probation under
supervision of court for failing to report as required by terms of that person's
probation, or for any other violation of that person's probation).
"The policy behind [Section 9912] is to assist the offenders in their
rehabilitation and reassimilation into the community and to protect the
public." Moore, supra at 620, (emphasis in original). "Essentially, Section
9912 authorizes county probation officers to search a probationer's person or
property, if there is reasonable suspicion to believe the probationer possesses
contraband or other evidence of violations of the conditions of supervision."
Chambers, supra at 1214, (citing 42 Pa.C.S.A. § 9912(d)(l)(i), (d)(2)).
"Reasonable suspicion to search must be determined consistent with
constitutional search and seizure provisions as applied by judicial decisions;
and in accordance with such case law, enumerated factors, where applicable,
may be taken into account." Chambers, supra (citing 42 Pa.C.S.A. §
9912(d)(6)).

In establishing reasonable suspicion, the fundamental inquiry
is an objective one, namely, whether the facts available to the
officer at the moment of the intrusion warrant a [person] of
reasonable caution in the belief that the action taken was
appropriate. This assessment, like that applicable to the
determination of probable cause, requires an evaluation of the
totality of the circumstances, with a lesser showing needed to
demonstrate reasonable suspicion in terms of both quantity or
content and reliability.

Moore, supra at 619-20, (internal citations and quotation marks omitted).

"[T]he threshold question in cases such as this is whether the probation
officer had a reasonable suspicion of criminal activity or a violation of
probation prior to the ... search." In re J.E., 907 A.2d 1114, 1119 (Pa. Super.
2006), aff'd, 594 Pa. 528, 937 A.2d 421 (2007) (emphasis omitted).
Accordingly, the fact that a probationer signs a consent form permitting
warrantless searches as a term of his probation is insufficient to permit a
search absent reasonable suspicion of wrongdoing. Id. at 1120. Rather, the
probationer's signature acts as acknowledgment that the probation officer

9
 "has a right to conduct reasonable searches of [the probationer's] residence
listed on the [probation] agreement without a warrant." Commonwealth v. E.
Williams, 547 Pa. 577, 588, 692 A.2d 1031, 1036 (1997).

Commonwealth v. Parker, --A.3d-- (Pa. Super 2016), 340 MDA 2016 (December

12, 2016) at 5-7.

Turning to the present case, it is clear that Agent Double had reasonable suspicion to

search the Defendant's person and premises, and did not violate the Defendant's Fourth

Amendment rights. In accord with Section 9912 and the aforementioned case law, Agent

Double went to the Defendant's room when he believed that the Defendant may have

violated his parole/probation by moving to a new location without permission. When he

arrived at the property, Agent Double was invited into the Defendant's room and

immediately saw a beer can, i.e., a technical parole/probation violation, in plain sight. After

viewing this parole violation, and after noticing that the Defendant's demeanor had

significantly changed since his last interaction with the Defendant, Agent Double became

concerned for his safety, and decided to perform a pat-down search of the Defendant.

The Court finds that the pat-down search of the Defendant complied with the

Constitutional requirements of Terry v. Ohio, 392 U.S. 1 (1968) and subsequent

Pennsylvania case law on the matter, as Agent Double was reasonably concerned about his

safety, believed that criminal activity was afoot, and that the Defendant could be in

possession of a weapon. ("Police officers may conduct a limited pat-down search for

weapons if they reasonably believe that criminal activity is afoot and that the individual is

armed and dangerous" Commonwealth v. Yong, 120 A.3d 299, 303 fn. 1 (Pa. Super. 2015),

reargument denied (Sept. 23, 2015), appeal granted on other grounds, 137 A.3d 573 (Pa.

2016), citing Terry. The search is also permissible based upon Section 9912(d) which

10
provides that to conduct a search of the Defendant's person, Agent Double only needed

reasonable suspicion that the Defendant may possess contraband or other evidence of

violations of the supervision conditions. The Court found Agent Double wholly credible

and his observations of the Defendant, his previous interactions with the Defendant, and the

presence of a technical parole violation are certainly enough to find reasonable suspicion of

a parole violation and justify the search of the Defendant's person. After Agent Double

found the presumed marijuana pipe and drug residue, he placed the Defendant under arrest

and called for backup from the Board of Probation and Parole and the Hermitage Police

Department.

At this point, Agent Double searched the bag the Defendant had reached into to look for

his parole/probation paperwork, as Defendant had gone through the bag before Agent

Double arrested him, and the room was small enough where the bag was still accessible to

the Defendant. The Court finds that this search of the black backpack is valid under the

well-established search incident to arrest exception to the warrantless search prohibition.

See Commonwealth v. Simonson, 148 A.3d 792 (Pa. Super. 2016).

The second issue in the motion to suppress is whether or not the subsequent search of

the hotel room violated the Defendant's Fourth Amendment rights. Our Superior Court has

made the following observations on this topic:

The Fourth Amendment protects "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures." U.S. Const. amend. IV; Pa. Const. art. 1, § 8. "The protection of
the Fourth Amendment does not depend on a property right in the invaded
place but does depend on whether the person who claims the protection of
the Amendment has a legitimate expectation of privacy in the invaded place."
Commonwealth v. Brundidge, 620 A.2d 1115, 1118 (Pa. 1993) (citingRakas
v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978)).

11
 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 constitutional
legitimacy of an expectation of privacy is not dependent on
the subjective intent of the individual asserting the right but
on whether the expectation is reasonable in light of all the
surrounding circumstances. Additionally, a determination of
whether an expectation of privacy is legitimate or reasonable
entails a balancing of interests.

Brundidge, 620 A.2d at 1118 (internal citations and quotation marks
omitted). Also, the Supreme Court has stated that "a guest in a motel or hotel
room has a legitimate expectation of privacy during the period of time it is
rented." Id.

As a general rule, "a search warrant is required before police may conduct
any search." Commonwealth v. White, 669 A.2d 896, 900 (Pa. 1995). Absent
the application of one of a few clearly delineated exceptions, a warrantless
search or seizure is presumptively unreasonable. Commonwealth v. McCree,
924 A.2d 621, 627 (Pa. 2007). This is the law under both the Fourth
Amendment to the United States Constitution and Article I, Section 8 of the
Pennsylvania Constitution. Id.

One such exception to our well-established warrant requirement is "exigent
circumstances," which this Court has explained, as follows:

The exigent circumstances exception to the warrant
requirement recognizes that some situations present a
compelling need for instant arrest, and that delay to seek a
warrant will endanger life, limb[,] or overriding law
enforcement interests. In these cases, our strong preference
for use of a warrant must give way to an urgent need for
immediate action.
***
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 a danger to police or other persons inside or
outside the dwelling.

Commonwealth v. Richter, 791 A.2d 1181, 1184-1185 (Pa.Super.2002)
[Emphasis in Caple]. "An inquiry to determine whether exigent
circumstances exist involves a balancing of the individual's right to be free
from unreasonable intrusions against the interest of society in investigating
crime quickly and adequately." Commonwealth v. Hinkson, 461 A.2d 616,

12
 618 (Pa. Super. 1983). "It requires an examination of all of the surrounding
circumstances in a particular case." Id. (citing Commonwealth v. Harris,
239 A.2d 290, 292 (Pa.1968)).

Commonwealth v. Caple, 121 A.3d 511, 517-518 (Pa. Super. 2015).

In the present matter, exigent circumstances dictated that Officer Brown was permitted

to enter the hotel room of the Defendant, and that the CLRT team was permitted to search

his belongings. As Caple and Brundidge state, the Defendant had an expectation of privacy

in the hotel room while it was presently rented out. However, it is clear to the Court that

after his period of paid occupancy expired, the Defendant no longer had the same privacy

interests in that space, and the hotel staff were permitted to enter into the room without prior

notice. The Hermitage Police, by extension, had the ability to enter into the room when so

permitted by the hotel staff. The Defendant also raises the objection that, although the motel

staff must have access to the room after time expired, this did not necessarily extend to

personal items left behind by the Defendant. While Defendant is correct that personal

possessions that do not readily reveal their contents are afforded a higher privacy interest,

1
("While the motel personnel must have access to and use of the motel room after the rental
I

period expires, this does not extend to items of personal luggage or other containers which

do not reveal the nature of their contents." Brundidge, 620 A.2d at 1119 ,) this interest is

clearly overridden by the exigent circumstances presented by the clandestine

methamphetamine laboratory.

When Officer Brown entered the room, he immediately smelled a strong odor of

chemicals. Furthermore, when the staff alerted him to the bag in question, he found a plastic

water bottle next to it with a cloudy pink substance inside. Based upon this information and

his previous training and experience, Officer Brown suspected that this was a clandestine

13
methamphetamine laboratory. As a testament to the exigency of the circumstances, Officer

Brown immediately ordered everyone out of the room and called the CLRT team to dispose

of the suspected methamphetamine operation, without even examining the bag. Officer

Brown also called the Hermitage Fire Department because he knew that there was a

likelihood that the water bottle could cause a fire. The clandestine production of

methamphetamine is a notoriously dangerous process, and the mixing of those chemicals

may lead to explosions, small fires, and the subsequent serious harm to the officers and

everyone else present in the hotel.

In summary, the Court denies Defendant's motion to suppress evidence of the searches.

Agent Double was justified in performing a physical search of the Defendant, and upon his

arrest was permitted to search his immediate surroundings pursuant to the search incident to

arrest exception. Officer Brown did not need a warrant to search the hotel room after the

Defendant's time for possession had passed, and although there is a higher standard for

searching Defendant's personal possessions left behind, this was overridden by the presence

I of the highly dangerous methamphetamine operation.

BY THE COURT,

��

'J.
Robert G. Yeatts, Judge

14
IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF
PENNSYLVANIA

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AND NOW, this 25 day of January, 201t, Defendant's motion to suppress evidence

obtained from the searches of his person, possessions, and hotel room conducted on July 7,

2016 is hereby denied.

BY THE COURT,

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------------' J.
Robert G. Yeatts, Judge

15