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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 2579 EDA 2016
WARREN HAND, :
:
Appellee
Appeal from the Order July 13, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012187-2015
BEFORE: BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 27, 2017
This is a Commonwealth appeal from the order entered July 13, 2016,
in the Philadelphia County Court of Common Pleas, granting the pretrial
motion of appellee, Warren Hand, to suppress evidence recovered during an
illegal search.1 When this appeal first appeared before the panel, we
determined the trial court erred in concluding the investigating officer’s
minimally intrusive act of moving aside drapes so that he could look inside a
residence, violated Hand’s constitutional rights. See Commonwealth v.
Hand, ___ A.3d ___, 2017 WL 3142408, *5 [2579 EDA 2016] (Pa. Super.
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1 Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the
Commonwealth properly certified in its notice of appeal that the order
“terminates or substantially handicaps the prosecution.” Notice of Appeal,
8/4/2016. See Pa.R.A.P. 311(d).
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2017) (unpublished memorandum). Nevertheless, we remanded so the trial
court could make additional findings as to whether the officer’s subsequent
search of a bedroom constituted a permissible protective sweep. See id. at
*6. The trial court complied with our directive and filed a supplemental
opinion, in which it concluded the officer’s warrantless search of the bedroom
was illegal. See Supplemental Opinion, 8/25/2017, at 3. For the reasons
below, we now affirm the order of the trial court granting Hand’s suppression
motion.
We recounted the facts underlying Hand’s conviction in our prior
memorandum as follows:
On June 19, 2015, at about 12:10 a.m., Philadelphia Police
Officer James Crown and his partner, Officer [Donald] Vandemay,
were on patrol in the Kensington section of Philadelphia for the
purpose of preventing gun violence. The officers responded to a
radio call directing them to go to 3462 Frankford Avenue to
investigate a report of a disturbance involving a person with a
gun.
Upon arrival, the front door to the property was open but
was immediately shut. Officer Crown heard males yelling inside
the property and observed drapes blowing out of a broken
window. Officer Crown attempted to open the front door but it was
locked. Thereafter, he walked up to the broken window, reached
inside the property and moved the drapes which allowed him to
observe [Hand] and a Nasir Lewis standing by a bedroom door.
[Hand] was observed with a semi-automatic gun in his hand.
Officer Crown announced his presence at which time [Hand]
looked in the officer’s direction, retreated into the bedroom and
slammed shut the bedroom door. The other male was directed to
exit the property at which time he was taken into custody.
Officer Crown then went inside the property and opened the
bedroom door. [Hand] was removed from the bedroom and taken
into custody by officers assisting Officers Crown and Vandemay.
Officer Crown then went back inside the bedroom and performed
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a search of the closet [where] he recovered a loaded .380 caliber
Bersa semiautomatic firearm. Police seized the weapon, took it
outside and observed a bullet lying on the steps to the residence
matching the bullets inside the seized firearm.
While at the property, [the o]fficer came in contact with a
woman named Geisel Duarte sitting on the steps leading into the
property. She stated that Lewis had “trashed” her house.
When Lewis was asked where he lived, he gave the address
to the property. [Hand] gave an address in Southwest
Philadelphia. Officer Crown did not know what the argument was
about, and did not know if anyone was hurt inside the residence.
[Hand] testified that he was staying at the first floor
residence with Lewis for several months before June 19, 2015. He
stated that he developed a relationship with Ms. Duarte, who lived
on the second floor of the residence. [Hand] testified that
sometimes he would stay in her apartment with her.
Hand, supra, 2017 WL 3142408, at *1–2 (citation omitted).
After Hand was charged with one count of persons not to possess
firearms,2 he filed a pretrial motion seeking suppression of the evidence,
based on the allegation that the firearm was recovered during an illegal
search. Following a suppression hearing, the trial court granted Hand’s
motion, and this Commonwealth appeal followed.
As noted above, we previously concluded Officer Crown acted properly
when he “‘momentarily brush[ed] aside a curtain flapping in the wind’ through
a smashed window to ensure ‘no one inside was in imminent danger.’” Id. at
*2 (citation omitted). Therefore, the only issue before us is whether, as the
Commonwealth asserts, the subsequent search of the bedroom constituted a
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2 See 18 Pa.C.S. § 6105(a)(1).
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permissible protective sweep for other possible assailants or victims. See
Commonwealth’s Brief at 12.
We reiterate our well-established standard of review:
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. The suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Vetter, 149 A.3d 71, 75 (Pa. Super. 2016) (quotation
omitted), appeal denied, ___ A.3d ___, 2017 WL 2588277 (Pa. 2017).
Furthermore, we emphasize: “[O]ur standard of review is highly deferential
with respect to the suppression court’s factual findings and credibility
determinations.” In re L.J., 79 A.3d 1073, 1080 n.6 (Pa. 2013).
“A ‘protective sweep’ is a quick and limited search of premises, incident
to an arrest and conducted to protect the safety of police officers or others[,]”
which is “narrowly confined to a cursory visual inspection of those places in
which a person might be hiding.” Maryland v. Buie, 494 U.S. 325, 327
(1990). See Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001)
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(approving of protective sweep under Buie),3 cert. denied, 534 U.S. 994
(2001). This Court has interpreted Buie as approving two levels of protection:
Pursuant to the first level of a protective sweep, without a showing
of even reasonable suspicion, police officers may make cursory
visual inspections of spaces immediately adjacent to the arrest
scene, which could conceal an assailant. The scope of the second
level permits a search for attackers further away from the place
of arrest, provided that the officer who conducted the sweep can
articulate specific facts to justify a reasonable fear for the safety
of himself and others.
Commonwealth v. Potts, 73 A.3d 1275, 1281–1282 (Pa. Super. 2013)
(quotation omitted), appeal denied, 83 A.3d 415 (Pa. 2013). Therefore, the
question in the present case is whether Officer Crown articulated specific facts
to substantiate a reasonable fear for the safety of himself or others to justify
his re-entry into the apartment after both Hand and Lewis were detained
outside.
In its supplemental opinion, the trial court found Officer Crown’s re-
entry into the apartment was illegal:
Here, the re-entry of the house and the search of the
bedroom clearly did not fit within the “first level” described above
because [Hand] and Lewis were in custody outside the property.
They no longer posed a threat to the officers and others present
at the time and the bedroom and the closet were not locations
from which [Hand] or Lewis could launch an attack or obtain a
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3 Although Taylor was a plurality decision, both the opinion announcing the
judgment of the court (“OJAC”) and the concurring and dissenting opinion
applied the two levels of protection announced in Buie, albeit to different
results. See Taylor, supra, 771 A.2d at 1273 (OAJC by Newman J. finding
protective sweep of basement valid), and at 1274-1275 (concurring and
dissenting opinion by Nigro, J. finding Commonwealth “failed to present
specific and articulable facts necessary to justify a protective sweep”).
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weapon given that neither man was in close proximity to those
locations.
Under the “second” level, Officer Crown was not justified in
re-entering the residence and walking into the bedroom because
he did not articulate specific facts to justify a reasonable belief
that someone was in the bedroom who posed a danger to the
police or others. According to Officer Crown, he re-entered the
house and the bedroom “to check the bedroom to secure it for any
other people that are in there.” The officer, however, had no basis
to do so because when he moved the curtain and looked into the
residence, he only saw [Hand] and Lewis enter the bedroom and
only [Hand] and Lewis exited the bedroom when he ordered those
inside to exit it. There was no evidence presented indicating that
anyone else was inside the bedroom or that, if there was, that
person or persons posed a threat to the police or others. Thus,
because both [Hand] and Lewis were in custody outside the
residence and there was no evidence presented indicating that
someone who posed a threat may have been in the bedroom,
there was no remaining exigency that could justify the general
exploratory search of the bedroom.
Supplemental Opinion, 8/25/2017, at 3 (record citation omitted).
Our review of the record reveals ample support for the court’s findings.
At the time Officer Crown searched the bedroom, both Hand and Lewis were
secured outside of the residence.4 See N.T., 5/26/2016, at 15-16, 30.
Furthermore, Officer Crown testified that after Hand emerged from the
bedroom, he could see the entire room except the left side behind the door.
See id. at 16. The officer stated he went in to “check the bedroom to secure
it for any other people that [were] in there.” Id. at 15-16. However, Officer
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4 We note that, implicit in the court’s ruling, is the determination that Officer
Crown had the authority to enter the residence and secure Hand, whom the
officer had seen with a weapon before Hand fled to the bedroom.
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Crown failed to “articulate specific facts”5 to justify his belief that another
person, who posed a threat to his safety, might be in the bedroom. Indeed,
as the trial court pointed out, when the officer peered through the broken
window unannounced, he saw only Hand and Lewis. Moreover, although
Officer Crown stated he saw “shadows moving under the [bedroom] door”
while Hand was inside, the officer provided no further facts to support an
inference that someone other than Hand was therein.6 N.T., 5/26/2017, at
15. Compare with Taylor, supra, 771 A.2d at 1268 (OJAC finding protective
sweep proper when two people officer saw enter the building minutes before
execution of warrant were not visible on first floor); Potts, supra, at 1282
(protective sweep of apartment proper when officers were investigating
possible domestic abuse; both woman who answered door, and man who ran
into bedroom when he saw police, were sweating and scared).7
In Buie, the Supreme Court emphasized that a protective sweep must
“last[] no longer than is necessary to dispel the reasonable suspicion of danger
and in any event no longer than it takes to complete the arrest and depart the
premises.” Id. at 335. Here, at the time Officer Hand conducted the search,
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5 Potts, supra, 73 A.3d at 1282.
6 See Buie, supra, 494 U.S. at 332 (reiterating that reasonable suspicion
must be based on more than “a mere inchoate and unparticularized suspicion
or hunch”) (citation and internal punctuation omitted).
7In Potts, it does not appear the male and female were removed from the
apartment before the officer conducted the protective sweep. See Potts,
supra, 73 A.3d at 1279, 1282.
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both Hand and Lewis were detained outside of the residence. The more
reasonable inference is that the officer entered the bedroom to search for the
weapon he had seen in Hand’s possession. Accordingly, we agree with the
trial court that Officer Crown did not possess the requisite reasonable
suspicion to conduct a protective sweep of the bedroom. Therefore, we affirm
the order of the trial court granting Hand’s pretrial suppression motion.
Order affirmed.
President Judge Emeritus Ford Elliott joins the majority decision.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/2017
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