Com. v. Boyd Chisholm, N.

J-S33028-17

2018 PA Super 391

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICHOLAS R. BOYD CHISHOLM :
:
Appellant : No. 964 MDA 2016

Appeal from the Judgment of Sentence June 1, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0006106-2014

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.

OPINION BY OTT, J.: FILED OCTOBER 30, 2018

Nicholas R. Boyd Chisholm1 appeals from the judgment of sentence

imposed on June 1, 2016, in the Dauphin County Court of Common Pleas. The

trial court sentenced Boyd Chisholm to an aggregate term of three to seven

years’ imprisonment following his non-jury conviction of persons not to

possess firearms, possession with intent to deliver (“PWID”) marijuana, and

possession of drug paraphernalia.2 On appeal, Boyd Chisholm contends the

trial court erred in denying his motion to suppress the evidence obtained

following an illegal search of his residence. In a memorandum decision filed

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 Throughout the record, Boyd Chisholm’s name appears both with and
without a hyphen, i.e. Boyd-Chisholm. We have chosen to address him using
the spelling on his appellate docketing statement.

2 18 Pa.C.S. § 6105 and 35 P.S. §§ 780-113(a)(30) and (a)(32), respectively.
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on August 4, 2017, we affirmed Boyd Chisholm’s judgment of sentence. See

Commonwealth v. Boyd Chisholm, 175 A.3d 1050 (Pa. Super. 2017)

(unpublished memorandum). However, by Order entered May 16, 2018, the

Pennsylvania Supreme Court vacated our decision, and remanded the appeal

for further consideration in light of its recent decision in Commonwealth v.

Romero, 183 A.3d 364 (Pa. 2018). See Commonwealth v. Boyd

Chisholm, 186 A.3d 938 (Pa. 2018). For the reasons below, we now vacate

the judgment of sentence, reverse the order denying suppression, and remand

for a new trial.
The facts underlying Boyd Chisholm’s arrest and conviction were

summarized by the trial court as follows:

The charges in this case stem from the Dauphin County Sheriff
Department’s attempt to serve an arrest warrant on Antonio
Foster at 2435 Fourth Street, Harrisburg, PA.[3] Specifically, the
warrant was for a domestic relations violation[, failure to pay
support].

… Terry Shipman of Dauphin County Domestic Relations
Office (DRO) [testified] regarding the process of obtaining an
arrest warrant for an individual. When a person owes child
support and fails to appear for their court proceeding, a warrant
is obtained. The initial part of the scheduling process is looking
up the address that the DRO has on file. They receive addresses
in different ways; sometimes from the individuals themselves,
from the other party in the case, or a third party. Before it is used
as a valid address, DRO verifies it with the United States Post
Office that it is indeed a good address. A standard form,
developed and utilized by the DRO, is printed out that includes the
individual’s name and address in question. The DRO sends that
to the Postmaster for the particular postal jurisdiction and asks for
____________________________________________

3 Foster is not involved in this appeal.

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verification of mail being delivered to that address. In this case,
the DRO used the same address that was used for Mr. Foster’s
court notice, the same address that was provided to the Dauphin
County Sheriff’s Office. The address would have been verified with
the United States Postal Service prior to sending out the notice for
Mr. Foster’s contempt hearing. Mr. Shipman testified that there
was a note in the DRO computer system that in late April of 2014
Mr. Foster was the one who called in and self-reported his address
(2435 Fourth Street). If the mail is not returned to the post office,
there is an assumption that it was received.

Daine Arthur of the Dauphin County Sheriff’s Office also
testified at the suppression hearing. Assigned to the Warrant Unit,
Deputy Sheriff Arthur was given a Domestic Relations warrant for
Antonio Foster, at the address of 2435 Fourth Street, Harrisburg,
PA. Deputy Sheriff Arthur testified that he has executed hundreds
of domestic relations warrants and that the addresses are very
reliable. Deputy Sheriff Arthur executed the warrant on November
10, 2014. When he arrived at the address listed on the warrant,
Deputy Sheriff Arthur took a position at the rear of the property
with Corporal Darin Sherfey. Deputies Dean Sullivan and Brock
Fasnacht stayed to the front of the residence. Deputy Fasnacht
radioed Deputy Sheriff Arthur to come around front. Deputy
Sheriff Arthur did so, and encountered [Boyd] Chisholm. He
informed [Boyd Chisholm] that he had a warrant for Antonio
Foster. [Boyd Chisholm] told Deputy Sheriff Arthur that Mr. Foster
did not live there. At that point, Deputy Sheriff Arthur told [Boyd
Chisholm] that the address on the warrant was the only one they
had for Mr. Foster, and that they would have to do a walk-through
to make sure Mr. Foster was not there. [Boyd Chisholm] again
told the authorities that Mr. Foster doesn’t live there, and that he
never lived there. Deputy Sheriff Arthur also testified, “In my
experience, a lot of times when people say that a certain individual
doesn’t live there, it’s not always a hundred percent true,” and
that it frequently happens that individuals lie about someone
being inside the house. Therefore, Deputy Sheriff Arthur
explained again that the authorities had to do a check of the
property to make sure Mr. Foster was not there. At that point,
[Boyd Chisholm] was inside the house and the sheriffs were on
the front porch. [Boyd Chisholm] stepped aside, said okay, and

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allowed Deputy Sheriff Arthur, and Deputies Fasnacht and Sullivan
into the home.[4]

Upon entry into the property, [Boyd Chisholm] made the
statement, “Please don’t arrest me.” When Deputy Sheriff Arthur
asked why, [Boyd Chisholm] stated that he had weed upstairs in
his room. [Boyd Chisholm] then led Deputy Sheriff Arthur to his
room and pointed out the green leafy substance on his bed. The
substance was packaged in clear plastic gallon bags, and there
was loose leafy green material on a scale on a nightstand.
Everything was in plain view. Deputy Sheriff Arthur radioed
Dauphin County Dispatch informing them that he needed a city
officer at his location. After the Harrisburg Police arrived, the
officers did an additional search. Deputy Sheriff Arthur was not
present for this. Deputy Sheriff Arthur also testified that [Boyd
Chisholm] was very cordial, well-spoken, and not aggressive.

[] Boyd[]Chisholm also testified. He stated that when he
opened his door, the sheriffs told him they had a warrant for Mr.
Foster, to which he responded that Mr. Foster did not live there
and they could not enter. [Boyd Chisholm] tried to shut the door,
and one of the sheriffs put his foot inside the door and told [Boyd
Chisholm] he had a warrant for him, and that they were coming
in. [Boyd Chisholm] said that at that point, one of the sheriffs
radioed for Deputy Sheriff Arthur to come around to the front. As
soon as Deputy Sheriff Arthur started talking to [Boyd Chisholm],
the officer who had his foot in the door walked into the home.
[Boyd Chisholm] testified that he did not resist or fight him.

Trial Court Opinion, 11/15/2016, at 1-4 (record citations omitted). Mr. Foster

was not found in the residence, and, in fact, provided a different address two

days later, on November 12, 2014, when he arrived at the Domestic Relations

Office to “pay his purge and have his warrant lifted.” N.T., 6/15/2015, at 20.

____________________________________________

4 We note the trial court did not enter a specific factual finding that Boyd
Chisholm gave the officers his consent to search the home, and the
Commonwealth does not contend that he did so. Therefore, consent is not at
issue in this appeal as it was in Romero, supra. See infra at 13 n.11.

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Boyd Chisholm was subsequently charged with persons not to possess

firearms, PWID, and possession of drug paraphernalia.5 On April 1, 2015, he

filed a pre-trial motion to suppress the evidence obtained during the search of

his home, arguing the arrest warrant for Foster did not provide the police with

sufficient justification to search his residence. The court conducted a

suppression hearing on June 15, 2015, and entered an order on August 4,

2015, denying Boyd Chisholm’s motion to suppress. The trial court later found

Boyd Chisholm guilty of the aforementioned offenses following a non-jury trial

conducted on March 21, 2016. On June 1, 2016, Boyd Chisholm was

sentenced to a term of three to seven years’ imprisonment for the firearms

offense, and a concurrent term of one to five years’ imprisonment for PWID.

No further penalty was imposed on the count of possession of paraphernalia.

This timely appeal follows.6

Boyd Chisholm’s sole issue on appeal challenges the trial court’s denial

of his motion to suppress. Specifically, he argues, pursuant to the Supreme

____________________________________________

5A charge of firearms not to be carried without a license was later withdrawn
by the Commonwealth. See 18 Pa.C.S. § 6106.

6 On June 22, 2016, the trial court ordered Boyd Chisholm to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Boyd Chisholm complied with the court’s directive, and filed a concise
statement on July 7, 2016.

Following the Pennsylvania Supreme Court’s remand, we issued a new
briefing schedule to the parties. Accordingly, our citations to the parties’ briefs
refer to their post-remand submissions.

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J-S33028-17

Court’s decision in Romero, supra, the law enforcement officers in the

present case unlawfully entered and searched his home; accordingly, all

evidence recovered during the search must be suppressed. See Boyd

Chisholm’s Brief at 19.

Our standard of review is well-settled:
[An appellate court’s] standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth 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 suppression court’s factual findings are
supported by the record, [the appellate court] is bound by [those]
findings and may reverse only if the court’s legal conclusions are
erroneous. Where ... the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to [ ] plenary review.

Commonwealth v. Mason, 130 A.3d 148, 151–152 (Pa. Super. 2015)

(quotation omitted), appeal denied, 138 A.3d 3 (Pa. 2016).

As a general rule, absent limited exceptions such as consent or exigent

circumstances, the police must obtain a warrant before searching a residence.

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

Whether an arrest warrant alone provides the necessary Fourth Amendment

protection to permit an officer to enter a residence to effectuate an arrest was

considered by the United States Supreme Court in Payton v. New York, 445

U.S. 573 (1980), and Steagald v. United States, 451 U.S. 204 (1981).

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J-S33028-17

In Payton, supra, the Supreme Court considered two consolidated

appeals in which police officers entered a suspect’s home to make a routine

felony arrest, without an arrest warrant or a search warrant. See Payton,

supra, 445 U.S. at 577-578. The Payton Court emphasized there were no

exigent circumstances present and consent was not given in either case, which

would have obviated the need for a warrant. See id. at 583. Under these

circumstances, the Court held: “[T]he Fourth Amendment … prohibits the

police from making a warrantless and nonconsensual entry into a suspect’s

home in order to make a routine felony arrest.” Id. at 576. Nevertheless,

the Payton Court commented the result might have been different had the

police been armed with an arrest warrant:

If there is sufficient evidence of a citizen’s participation in a felony
to persuade a judicial officer that his arrest is justified, it is
constitutionally reasonable to require him to open his doors to the
officers of the law. Thus, for Fourth Amendment purposes, an
arrest warrant founded on probable cause implicitly carries with it
the limited authority to enter a dwelling in which the suspect lives
when there is reason to believe the suspect is within.

Id. at 602-603.7

The following year, in Steagald, supra, the Court considered “whether,

under the Fourth Amendment, a law enforcement officer may legally search

for the subject of an arrest warrant in the home of a third party without first

obtaining a search warrant.” Steagald, supra, 451 U.S. at 205 (emphasis
____________________________________________

7 It merits emphasis there was no question in Payton that the homes searched
were the residences of the suspects, and the parties did not argue “the police
lacked probable cause to believe that the suspect was at home when they
entered.” Payton, supra, 445 U.S. at 582.

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supplied). Concluding an arrest warrant does not authorize police to search

the residence of a third party, the Steagald Court explained:

[W]hile an arrest warrant and a search warrant both serve to
subject the probable-cause determination of the police to judicial
review, the interests protected by the two warrants differ. An
arrest warrant is issued by a magistrate upon a showing that
probable cause exists to believe that the subject of the warrant
has committed an offense and thus the warrant primarily serves
to protect an individual from an unreasonable seizure. A search
warrant, in contrast is issued upon a showing of probable cause
to believe that the legitimate object of a search is located in a
particular place, and therefore safeguards an individual’s interest
in the privacy of his home and possessions against the unjustified
intrusion of the police.

Id. at 212-213. Indeed, the Court commented the arrest warrant at issue

“did absolutely nothing to protect [the third party] petitioner’s privacy interest

in being free from an unreasonable invasion and search of his home.” Id. at

213. Nevertheless, relying on the above-quoted passage from Payton, the

Steagald Court stated, “an arrest warrant alone will suffice to enter a

suspect’s own residence to effect his arrest.” Id. at 221.

Relying on the latter principle, this Court has held that when the police

have a reasonable, but mistaken, belief that the subject of the arrest warrant

lives at a particular address, they may enter the residence to look for the

subject without first obtaining a search warrant. See Commonwealth v.

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Muniz, 5 A.3d 345 (Pa. Super. 2010), appeal denied, 19 A.3d 1050 (Pa.

2011).8

However, the Pennsylvania Supreme Court’s recent decision in Romero,

supra, effectively rejected the “reasonable, but mistaken belief” standard.

The relevant facts in Romero were as follows. In June of 2011, Earnest

Moreno absconded from a halfway house, and a warrant was issued for his

arrest. See Romero, supra, 183 A.3d at 372. Moreno’s parole agent, Sean

Finnegan, attempted to execute the arrest warrant at 4745 North 2 nd Street

in Philadelphia, which he believed to be “Moreno’s most likely place of

residence.” Id. The residence was the home of Moreno’s half-brother, Angel

Romero, and his wife, Wendy Castro. See id. When Agent Finnegan

attempted to serve the warrant, he knocked on the door, announced he had

____________________________________________

8 In Muniz, supra, the police were armed with an arrest warrant for Timothy
Baldwin. They developed a reasonable belief Baldwin lived in an apartment
at 446 Fremont Street based on the following: testimony from a female at his
prior residence; a Lexis/Nexis search, and a statement from a co-resident in
the building that he lived there. Muniz, supra, 5 A.3d at 351. Although the
resident, Muniz, informed them Baldwin did not live there, the officer
conducted a search for Baldwin (who was not present), and discovered drugs
and paraphernalia. See id. at 347. On appeal, a panel of this Court concluded
the trial court did not err in denying Muniz’s suppression motion. The panel
determined the officers had a “legal basis to enter the residence in search of
Baldwin” based upon their “reasonable (though mistaken) belief” it was his
residence. Id. at 351. In doing so, the panel rejected evidence that Baldwin’s
approved parole address was different, and Muniz’s mother testified that only
she and Muniz lived in the apartment. See id. The panel commented, “the
testimony of [Muniz’s] mother is irrelevant to what authorities believed on the
morning of the incident.” Id.

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an arrest warrant for Moreno, and either Romero or Castro permitted him to

enter the residence. See id. at 372-373. The agent testified: “[T]he

residents began to object to the search of their home once a member of the

arrest team began to approach the basement.” Id. at 373. In the basement,

the officers did not locate Moreno, but did observe a large marijuana growing

operation. See id. at 372. Romero and Castro were subsequently charged

with drug offenses and possessing an instrument of crime. Both filed a

suppression motion challenging the agents’ warrantless search of the

residence. See id. Following a hearing, the suppression court granted the

motions, and the Commonwealth filed an interlocutory appeal.

A panel of this Court reversed the order granting the defendants’

suppression motions, and remanded the case for trial. Relying on Muniz,

supra, the panel held: “Where authorities have a reasonable belief that the

subject of an arrest warrant lives within a given premises, they can enter the

home and arrest the suspect without a search warrant.” Commonwealth v.

Romero, 138 A.3d 21, 25 (Pa. Super. 2016). Under the facts of the case

before it, the panel concluded the parole agent’s testimony regarding how he

came to believe Moreno resided at the residence, was sufficient to establish,

by a preponderance of the evidence, that the agent “reasonably believed that

Moreno’s last place of address was [the defendants’] home.”9 Id. at 28.

____________________________________________

9The parole agent provided documentary evidence that the North 2 nd Street
address was on Moreno’s expired driver’s license from 2007, and was the

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However, on appeal, the Pennsylvania Supreme Court reversed. The

lead opinion, authored by Justice Wecht,10 held: “If entry into a residence is

necessary to search for [an individual named on an arrest warrant], then the

warrant must reflect a magisterial determination of probable cause to search

that residence, regardless of whether the warrant is styled as an ‘arrest

warrant’ or a ‘search warrant.’” Romero, supra, 183 A.3d at 403.

In reaching this decision, the lead opinion considered the interplay of

the Supreme Court’s decisions in Payton and Steagald:

Taken together, Payton’s dictum and Steagald’s holding
stand for a principle that is clear enough in the abstract: police
officers may enter the home of the subject of an arrest warrant to
effectuate the arrest, but they must obtain a valid search warrant
before entering the home of a third party. In the wake of these
decisions, however, courts have struggled with the degree and
manner of proof required to establish that a place is in fact an
individual’s residence—the central inquiry that would determine
whether a given situation implicates Steagald’s holding or,
instead, Payton’s dictum.

Romero, supra, 183 A.3d at 389. Indeed, the Court observed that “neither

Payton nor Steagald provided guidance as to the manner in which a

particular residence may be determined to be that of one individual or

____________________________________________

address Moreno provided to the police department in 2009 when he was on
parole. The agent also testified the North 2nd Street address was listed as
Moreno’s residence in the halfway house records, and the address Moreno
provided on the day he absconded. See Romero, supra, 138 A.3d at 28.

10Justices Todd and Donahue joined Justice Wecht’s lead opinion. Justice
Mundy wrote a concurring opinion, and Justice Dougherty authored a
concurring and dissenting opinion, joined by Chief Justice Saylor and Justice
Baer.

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another.” Id. at 390. Justice Wecht noted that “[i]n nearly every conceivable

circumstance, determining where an individual resides will require some type

of investigation.” Id. Accordingly, the lead opinion determined the proper

standard for determining whether a suspect lives at a particular residence

could not be anything less than probable cause. See id. at 394.

[L]aw enforcement armed only with an arrest warrant may not
force entry into a home based on anything less than probable
cause to believe an arrestee resides at and is then present within
the residence. A laxer standard would effect an end-run around
the stringent baseline protection established in Steagald and
render all private homes—the most sacred of Fourth Amendment
spaces—susceptible to search by dint of mere suspicion or
uncorroborated information and without the benefit of any judicial
determination.

Id., quoting U.S. v. Vasquez-Algarin, 821 F.3d 467, 480 (3d Cir. 2016). In

reconciling the Payton and Steagald decisions, Justice Wecht opined:

We cannot interpret the Payton dictum to approve of the
intolerable consequence that homes may be searched without a
warrant supported by probable cause simply on the strength of a
police officer’s mistaken assumption. Such a conclusion
effectively would nullify the Steagald holding. In recognition of
this, and until provided contrary guidance from the Supreme Court
of the United States, we conclude that Steagald must control this
area of Fourth Amendment law, and that the Payton dictum must
yield to Steagald and to the volumes of earlier precedent
regarding the protection of the home and the necessity of the
warrant requirement.

Id. at 400.

Accordingly, the lead opinion provided the following guidance:

From all of the foregoing considerations, a simple and
uniform rule emerges. The Fourth Amendment protects the
privacy interests in all homes. To overcome that privacy interest,
a warrant used to enter a home must reflect a magisterial

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determination of probable cause to believe that the legitimate
object of a search is contained therein. The form of the warrant
is significant only in that it ordinarily signifies “what the warrant
authorize[s] the agents to do.” Steagald, 451 U.S. at 213, 101
S.Ct. 1642. That is, the central distinction between an “arrest
warrant” and a “search warrant” is the identification of the
particular person or place that the magistrate has found probable
cause to seize or to search. If an arrest warrant is based solely
upon probable cause to seize an individual, then it authorizes
precisely that seizure. If entry into a residence is necessary
to search for that individual, then the warrant must reflect
a magisterial determination of probable cause to search
that residence, regardless of whether the warrant is styled
as an “arrest warrant” or a “search warrant.” The critical
inquiry is whether the warrant adequately addresses all of
the Fourth Amendment interests that are implicated by the
contemplated action.

Id. at 403-404 (emphasis supplied and footnotes omitted). Because the

arrest warrant at issue was not included in the certified record, the lead

opinion remanded the case to the trial court to allow the Commonwealth the

opportunity to introduce the warrant into evidence, so that the suppression

court could determine whether the “contents of the warrant reflected the

magistrate’s determination of probable cause to search Romero’s and Castro’s

home[.]” Id. at 406.

In a concurring opinion, Justice Mundy joined one part of the lead

opinion,11 and stated she “agree[d] with a significant portion of the lead

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11The lead opinion also concluded the Superior Court had erred in finding that
one of the residents, either Romero or Castro, permitted the officers to enter
the home:

[T]he suppression court could not have been more clear, finding
as a fact “that the police officer did not have the expressed

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opinion’s reasoning as well as its mandate to remand to the trial court to give

the Commonwealth the opportunity to introduce the arrest warrant to

ascertain whether it provided a basis for the search of [Romero and Castro’s]

home.” Id. (concurring opinion by Mundy, J.). She explained, however, her

“principal point of disagreement with the lead opinion [was] over its treatment

of Payton as an intermediate category between pure dicta and a binding

rule.” Id. at 407 (concurring opinion by Mundy, J.). Judge Mundy opined that

the language in Payton has evolved “as its own constitutional rule that

requires: (1) a valid arrest warrant; (2) probable cause that the home in

question is the arrestee’s residence; and (3) probable cause that the arrestee

will be found at that home in the moment the search is effectuated.” Id.

(concurring opinion by Mundy, J.). Therefore, she concluded:

Payton requires probable cause to believe that 4745 North
Second Street was Moreno's residence and that Moreno would be
physically present there when the officers effectuated their entry.

Id. at 408 (concurring opinion by Mundy J.) (emphasis in original).

____________________________________________

permission to search the property from the defendants.” The only
suggestion that Romero or Castro consented to the entry came
from Agent Finnegan’s testimony, which Romero’s account of the
events unquestionably contradicted. Because the Court of
Common Pleas granted Romero’s and Castro’s motions to
suppress, the Superior Court was not at liberty to consider any of
the Commonwealth’s contradicted evidence.

Romero, supra, 183 A.3d at 377. Justice Mundy joined the resolution of the
consent issue in full. See id. at 406 (concurring opinion by Mundy, J.)

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In a concurring and dissenting opinion, Justice Dougherty explained that

while he agreed with much of the lead opinion’s reasoning, he disagreed with

the following:

(1) its continual reference to the relevant language from Payton
… as “the Payton dictum,” and its subsequent treatment of that
language; and (2) its ultimate conclusion the Fourth Amendment
requires police to obtain a search warrant every time they wish to
search a residence for the subject of an arrest warrant.

Id. at 409 (concurring and dissenting opinion by Dougherty, J., joined by Chief

Justice Saylor and Justice Baer). Justice Dougherty concluded it was

unnecessary for the lead opinion to prescribe a new rule, essentially requiring

“that police obtain a search warrant every time they wish to search a residence

for the subject of an arrest warrant.” Id. at 410 (concurring and dissenting

opinion by Dougherty, J.). Rather, he opined “the critical inquiry in this

case[,]” which was not answered by the lead opinion, was “whether Agent

Finnegan had probable cause to believe Moreno resided in [Romero and

Castro’s] home.” Id. (concurring and dissenting opinion by Dougherty, J.).

On that issue, Justice Dougherty would have found the information relied upon

by Agent Finnegan did not establish the requisite probable cause, so that he

would have reversed the order of the Superior Court and reinstated the order

of the suppression court. Id. (concurring and dissenting opinion by

Dougherty, J.).

Turning to the present matter, the trial court found Deputy Sheriff

Arthur had a reasonable basis to believe Foster resided at Boyd Chisholm’s

residence. Relying on Muniz, this Court’s prior decision in Romero, and

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Commonwealth v. Conception, 657 A.2d 1298 (Pa. Super. 1995),12 the trial

court opined:

Here, deputy sheriffs were executing a domestic relations warrant
for Antonio Foster with an address of 2435 Fourth Street in
Harrisburg, PA. That address was the only address listed on the
warrant. Terry Shipman’s testimony emphasized the measures
taken to ensure the reliability of the addresses at Dauphin County
Domestic Relations, and that the U.S. Post Office verified that []
Mr. Foster was having mail sent to 2435 Fourth Street. Mr.
Shipman’s testimony was bolstered by Deputy Sheriff Arthur’s
statements that, in his experience, the addresses on the domestic
relations warrants he executes are reliable. He also explained that
even though [Boyd Chisholm] denied that Mr. Foster lived there,
it was common for people to lie about the presence of wanted
persons. The testimony presented leads to the conclusion that
the search of the 2435 Fourth Street address was appropriate and
supported by a reasonable belief that Mr. Foster resided there.
The deputy sheriffs reasonably relied on a warrant address they
believed was dependable based on past experience. Pursuant to
____________________________________________

12In Conception, supra, the police arrived at 701 West Wingohocking Street
with an arrest warrant for two men, Marcus Rivera and Robert Vargas. Vargas’
warrant listed the West Wingohocking residence as one of his three addresses.
Conception, who answered the door, told police she did not know either man,
and refused to allow them to enter. However, they ignored her objection and
forcibly entered the home, where they discovered marijuana in plain view, and
Rivera hiding in the bathroom. See Conception, supra, 657 A.2d at 1299.

On appeal, a panel of this Court found the trial court did not err in
denying Conception’s suppression motion. The panel emphasized the arrest
warrant for Vargas specified three addresses for him, one of which was the
West Wingohocking residence. Moreover, one of the detectives testified he
learned through “reliable information from the narcotics unit … that Rivera and
Vargas were staying” at that residence, had been seen in the area, and one
of them ran into that residence while being pursued by another officer. Id. at
1300. Accordingly, the panel concluded “the police officer had a reasonable
and well-founded belief that 701 West Wingohocking was the residence of at
least one of the fugitives[, and] stated so on his affidavit of probable cause
for arrest warrant.” Id.

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Muniz, supra, Conception, supra, and Romero, supra, the
actions of the deputy sheriffs were reasonable and the search was
proper.

Trial Court Opinion, 11/15/2016, at 5-6. Obviously, the trial court was without

the benefit of the Supreme Court’s decision in Romero. To that end, the

Commonwealth contends the Romero decision simply “reiterated that

probable cause remains the standard to enter a residence to execute an arrest

warrant.” Commonwealth’s Brief at 6. Relying upon this Court’s decision in

Muniz, supra, the Commonwealth insists the deputies in the present case

“had sufficient information to form a reasonable belief that Foster lived [at

Boyd Chisholm’s residence] and was present.” Id. at 7-8.

Boyd Chisholm argues, however, that Muniz is inconsistent with the

Supreme Court’s decision in Romero, which controls. See Boyd Chisholm’s

Brief at 27. Accordingly, he asserts “a judicial determination is required before

entry to the home is made.” We agree.13

The lead opinion in Romero explicitly requires “a magisterial

determination of probable cause” before police may serve an arrest warrant

inside a residence, absent exigent circumstances or consent. Romero,
____________________________________________

13The continued vitality of Muniz is particularly suspect in light of the panel’s
explicit rejection of a probable cause standard:

[W]e … reject [Muniz’s] argument that the authorities needed
probable cause (beyond the arrest warrant) to enter his residence
in search of Baldwin. Indeed, as set forth above, … all that was
necessary was a valid arrest warrant and a “reasonable belief”
that Baldwin lived in and could be found in the residence.

Muniz, supra, 5 A.3d at 352 n.7 (record citation omitted).

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supra, 183 A.3d at 403. See id. at 404 (“The critical inquiry is whether the

warrant adequately addresses all of the Fourth Amendment interests that are

implicated by the contemplated action.”). Here, it is clear no such

determination was made. The domestic relations capias, which served as the

arrest warrant in the present case, is included in the certified record. See

N.T., 6/15/2015, at 53 (Commonwealth’s Exhibit 1). While it lists “2435 4 th

Street” as Foster’s address, and Deputy Sheriff Arthur testified the addresses

supplied by Domestic Relations are usually “very” reliable,14 the judicial-

approved capias provides no information as to how that address was obtained.

See id. Accordingly, pursuant to the mandate of the lead opinion in Romero,

the evidence recovered during the search herein must be suppressed.15

Furthermore, even if we were to confine our analysis to the concerns of

Justice Mundy in her concurring opinion, the result would be the same. While

she did not go so far as to require a magisterial determination of probable

cause, Justice Mundy emphasized the language in Payton requiring probable

cause that both (1) “the home in question is the arrestee’s residence; and (2)
____________________________________________

14 N.T., 6/15/2015, at 35.

15 We recognize the warrant here was a domestic relations capias issued by
the Prothonotary under the authority of a Common Pleas judge for failure to
appeal for a non-support hearing, rather than a typical arrest warrant issued
by a magistrate for a felony. Nevertheless, we are bound to follow Romero.
Our disposition does not implicate the constitutionality of the procedure
utilized to issue the capias. Rather, we conclude only the search of the
residence was unlawful. Indeed, the only restriction this ruling places on the
officers, in the absence of a judicial determination of probable cause, is that
they cannot enter a home without exigent circumstances or consent.

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… the arrestee will be found at that home in the moment the search is

effectuated.” Romero, supra, 183 A.3d at 407 (concurring opinion by

Mundy, J.) (emphasis supplied). Indeed, Justice Mundy concluded that even

if the parole agent in Romero had probable cause to believe the address was

the suspect’s residence, “the Commonwealth did not provide any evidence

that [the suspect] would be physically present when the officer entered

[Romero and Castro’s] home.” Id. at 408 (concurring opinion by Mundy, J.)

(footnote omitted).

Here, neither the testimony at the suppression hearing, nor the

domestic relations capias for non-support, provided probable cause to

conclude Foster would be at the Boyd Chisholm’s residence when the warrant

was served. Indeed, the warrant itself was issued on August 29, 2014, and

the attached domestic relations checklist was completed on September 9,

2014. See N.T., 6/15/2015, at 12, 14. Deputy Sheriff Arthur did not attempt

to serve the warrant until November 10, 2014. The Commonwealth provided

no explanation of any steps taken during the two-month lapse to ensure the

address provided for Foster was correct. Accordingly, even under Justice

Mundy’s concurrence, the testimony at the suppression hearing was

insufficient to provide probable cause to search the residence when Foster did

not answer the door, no exigent circumstances were present, and Boyd

Chisolm did not consent to the search.

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Therefore, pursuant to the Supreme Court’s mandate in Romero,

supra, we are compelled to vacate the judgment of sentence, reverse the

order denying suppression, and remand for a new trial.

Judgment of sentence vacated. Order denying suppression reversed.

Case remanded for further proceedings. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/30/2018

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