J-A14040-14
2014 PA Super 199
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RODNEY SCOTT BOWMASTER, :
:
Appellant : No. 1925 MDA 2013
Appeal from the Judgment of Sentence of October 7, 2013
in the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000483-2012
BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED SEPTEMBER 17, 2014
Rodney Scott Bowmaster (Appellant) appeals from the judgment of
sentence imposed following his October 7, 2013 convictions for weapons of
mass destruction, prohibited offensive weapons, recklessly endangering
another person,1 possession of a designer drug, and multiple counts of
possession of a controlled substance with intent to deliver.2 After careful
vacate his judgment of sentence.
On October 25, 2012, at approximately 2:10 in the morning,
Pennsylvania State Troopers Andrew Mincer and William Ritrosky received
information from burglary victim, Kristen Karchner (Karchner), that a
____________________________________________
1
18 Pa.C.S. §§ 2716(a), 908(a), and 2705, respectively.
2
35 P.S. §§ 780-113(a)(36), (a)(30), respectively.
* Retired Senior Judge assigned to the Superior Court
J-A14040-14
residence. Karcher related that her son observed the gun in the shed, and
told her it was traded to pay off a debt. After receiving this information,
investigate, arriving at approximately 3:15 A.M.
Appellant lived in a mobile home park. His trailer was situated
perpendicular to the road. The door of the home, located on the side of the
trailer, was accessible only by walking half the length of the building,
unded by a chain-link
posted on the fence. Upon arrival, the troopers observed the glow of lights
and a television through a window immediately to the left of the door. The
window had blinds, but was not completely closed due to the presence of a
Trooper Mincer peered through the window beside the door and was able to
observe Appellant and another man sitting on a couch immediately under
the window. Trooper Mincer watched Appellant rise from the couch to
answer the door and the other man move quickly to the back of the trailer.
After both men left the room, Trooper Mincer was able to observe a large
knife, what he believed to be heroin packets on a coffee table, and a rifle in
the corner of the room. Further, Trooper Mincer reported smelling a
chemical smell consistent with burnt synthetic drugs.
-2-
J-A14040-14
After Appellant answered the door, Trooper Ritrosky explained why
they were there. Trooper Mincer then asked Appellant whether anyone else
observations, Trooper Mincer performed a protective sweep of the trailer,
during which he detained two adult individuals and one child, and observed a
large knife, a rifle, and assorted packaged drugs in plain view. A search
warrant was obtained. Following the execution of the warrant, the state
quantities of prescription medication, multiple scales, a number of laptop
computers, three safes, various indicia of drug use and trafficking, as well as
other contraband.
Appellant was arrested and charged with multiple crimes stemming
from the search of his home. On July 15, 2013, Appellant filed a pre-trial
motion to suppress the evidence seized by state police. On August 8, 2013,
s denied.
On August 26, 3013, Appellant proceeded to a stipulated bench trial.
On August 30, 2013, Appellant was found guilty of the aforementioned
offenses. On October 8, 2013, Appellant was sentenced to an aggregate
term of seven years and nine months to sixteen years of incarceration. This
timely appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
-3-
J-A14040-14
On appeal, Appellant asks us to consider whether the trial court erred
at 8. Specifically,
Appellant claims that the side yard of his home constituted the curtilage of
his property; thus, the police viewed the interior of his home from an illegal
vantage point. He further argues that there existed no exigent
circumstances to support nighttime warrantless entry onto the curtilage of
Brief at 12-15. The Commonwealth contends that the evidence was lawfully
obtained, first arguing that the troopers did not violate the curtilage of
Brief at 2-3. The Commonwealth further argues that the observations of
Trooper Mincer constituted exigent circumstances that justified the
warrantless search. Id. at 3-5.
Our analysis of this question begins with the presumption that
where a motion to suppress has been filed, the burden is on the
Commonwealth to establish by a preponderance of the evidence
that the challenged evidence is admissible. If the trial court
denies the motion, we must determine whether the record
conclusions drawn therefrom are free from error. In so doing,
we may consider only the evidence of the prosecution and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where the
record supports the findings of the suppression court, we are
bound by those facts and may reverse only if the court erred in
reaching its legal conclusions based upon the facts.
-4-
J-A14040-14
Commonwealth v. Berkheimer, 57 A.3d 171, 177 (Pa. Super. 2012) (en
banc) (citations and quotations omitted).
Absent probable cause and exigent circumstances, warrantless
searches and seizures in a private home violate both the Fourth Amendment
and Article 1 § 8 of the Pennsylvania Constitution. Commonwealth v.
Lopez, 609 A.2d 177, 178-179 (Pa. Super. 1992). These constitutional
Id. at
determine whether an individual reasonably may expect that an area
immediately adjacent to the home will remain private. Curtilage is entitled to
constitutional protection from unreasonable searches and seizures as a place
where the occupants have a reasonable expectation of privacy that society is
Commonwealth v. Johnson, 68 A.3d 930, 936 at n.
3 (Pa. Super. 2013) (citation omitted).
the time of the incident. N.T., 8/8/2013, at 11, 26-27; Defense Suppression
Exhibits 1 and 2. The fence contained numerous signs which indicated that
the area was off-limits to the general public. Id. Based on this evidence, we
agree with Appellant that the side yard of his home constituted the curtilage
of his property and was subject to a reasonable expectation of privacy. See
Commonwealth v. Gibbs, 981 A.2d 274, 279 (Pa. Super. 2009) (holding
that front porch did not
-5-
J-A14040-14
or other enclosed space preceding or surrounding the porch, the porch
abutted the sidewalk, there was no gate blocking entry to the porch and
nothing else that would indicate that it was closed to members of the
general public). However, our inquiry does not end there; we must
determine whether there were both probable cause and exigent
circumstances to support the off
property.
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
Commonwealth v. Santiago, 736 A.2d 624, 631 (Pa. Super.
1999) (citations omitted; emphasis in orginal). In Commonwealth v.
Roland,
determining whether exigent circumstances exist, a number of factors are to
(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
-6-
J-A14040-14
against one another in determining whether the
warrantless intrusion was justified.
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).
In this case, a balancing of the Roland factors outlined above
property. Assuming the gravity of the offense of possession of a potentially
stolen gun is high, the officers had no reason to believe the occupants of the
escape, or violence was imminent. More importantly, the time of day of the
n that the
officers should have obtained a search warrant.
As an en banc panel of this Court recently explained,
[t]hat presumption [that a warrantless search is
unreasonable] is buttressed where, as here, the search at issue
is conducted in the dark of night. As observed by Mr. Justice
privacy than the nighttime intrusion into a private home
Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2
ct that an entry is made at
night raises particular concern over its reasonableness ... and
may elevate the degree of probable cause required, both as
implicating the suspect, and as showing that he is in the place
Commonwealth v. Williams, 483 Pa. 293, 396 A.2d
1177, 1180 (1979) (citing Jones, supra.). So palpable is that
concern in this Commonwealth that our Supreme Court has
-7-
J-A14040-14
circumscribed even the issuance of warrants for probable cause,
search warrant shall authorize a nighttime
search unless the affidavits show reasonable cause for such
nighttime search
which a magistrate may lawfully issue such warrants, this Court
has expressly distinguished the showing of probable cause
necessary for the issuance of daytime warrants from those to be
served at night:
The Rule is clear that probable cause is required for
the issuance of a search warrant authorizing a
daytime or nighttime search. However, due to the
greater intrusion upon individual privacy occasioned
by a nighttime search, some greater justification
than that required for a daytime search must be
shown. See Pa.R.Crim.P. [203(E) and Comment].
Put simply, the affidavit for a warrant authorizing a
nighttime search must show both probable cause
and some reason why the search cannot wait until
morning.
Commonwealth v. Baldwin, 253 Pa. Super. 1, 384 A.2d 945,
948 (1978) (emphasis added). Accord Commonwealth v.
Camperson, 437 Pa. Super. 355, 650 A.2d 65, 70 (1994)
(noting that the Rule of Criminal Procedure governing issuance
of warrants for nighttime searches
search
Berkheimer, 57 A.3d at 178-179.
Instantly, there was no exigency or urgency established by the
this search could not wait until morning or until a warrant was procured.
by
that Appellant is in possession of a firearm arguably provide probable cause
-8-
J-A14040-14
to search the shed, and poss
outweigh the reality that no exigency existed to justify a warrantless
observations of Trooper Mincer through the window cannot support the
o
As we have found that Appellant had a reasonable expectation of
privacy in the curtilage of his home and the Commonwealth has failed to
show exigent circumstances, we conclude that the troopers were required to
obtain a search warrant before engaging in an investigation onto the
rights to be free from
unreasonable searches and seizures. As a result, the entry by police onto
constitutional rights should have been suppressed.
-9-
J-A14040-14
Judgment of sentence vacated
suppress reversed. Case remanded for additional proceedings. Jurisdiction
relinquished.
President Judge Emeritus Ford Elliott, joins the opinion.
Judge Olson files a concurring opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
- 10 -
Com. v. Bowmaster, R.
Combined Opinion