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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
WARREN HAND
No. 2579 EDA 2016
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.
DISSENTING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 27, 2017
I would reverse the order granting suppression. I would hold that Officer
James Crown was permitted to conduct a warrantless search of the closet in
order to investigate potential danger to third parties as an application of
exigent circumstances, resulting in a valid seizure of the firearm under the
plain view doctrine. Therefore, I respectfully submit this dissent.
The facts are relatively straightforward. On June 19, 2015, at
approximately 12:10 a.m., Philadelphia Police Officer James Crown and his
partner, Officer Donald Vandemay, were directed to respond to a particular
residence due to a report of a man with a gun. When they arrived, the front
door was open, but was immediately shut by an unknown person when the
officers exited their vehicle. Officer Crown heard males yelling inside the
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home and his attention was drawn to a broken window, with the drapes
billowing. He brushed the curtain aside and observed two men, Appellee
Warren Hand and Nasir Lewis, standing by a bedroom door. Appellee had a
firearm in his hand. Officer Crown announced his presence, and Appellee
retreated into a bedroom and shut the door. Lewis was ordered outside, and
he complied.
Officer Crown opened the bedroom door, removed Appellee, who no
longer possessed a firearm, and turned him over to his partner. Officer Crown
then reentered the home, and searched a closet in the bedroom from which
Appellee was apprehended. He observed a firearm, which he seized. The trial
court granted Appellee’s motion to suppress the firearm, and the
Commonwealth appealed.
The learned Majority, like the trial court, limits its analysis of the closet
search to Maryland v. Buie, 494 U.S. 325 (1990), wherein the United States
Supreme Court established when police officers may perform a “protective
sweep” as a search incident to an arrest. Therein, police officers were serving
an arrest warrant for Buie. Once inside Buie’s home, an officer called down
basement steps, and Buie responded. Buie complied with the order to come
upstairs, where he was arrested, searched, and handcuffed, thereby
completing the warrant’s purpose. Id. at 328. Nevertheless, another officer
“entered the basement ‘in case there was someone else’ down there.” Id. at
328 (citation omitted). He seized evidence and the trial court denied Buie’s
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motion to suppress. The Court of Appeals of Maryland reversed, holding that
the officers were required to establish probable cause of a “serious and
demonstrable potentiality for danger” to justify the warrantless search. Id.
at 329 (citation omitted).
The High Court reversed. First, the Court noted that the officers would
have been permitted, prior to arresting Buie, to enter the basement. Once
apprehended, however, the reason for the entry into the home was complete
and the arrest warrant could not justify a further search of the home. Id. at
333. The Court nevertheless concluded that the officers were not per se
barred from searching the basement:
We also hold that as an incident to the arrest the officers could,
as a precautionary matter and without probable cause or
reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an attack
could be immediately launched. Beyond that, however, we hold
that there must be articulable facts which, taken together with the
rational inferences from those facts, would warrant a reasonably
prudent officer in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene.
Id. at 1098. Thus, the warrantless search in Buie was reasonable due to the
interest in officer safety, and permitted a search of the immediate area
surrounding the arrestee with no further justification whatsoever. “We are
quite sure, however, that the arresting officers are permitted in such
circumstances to take reasonable steps to ensure their safety after, and while
making, the arrest. That interest is sufficient to outweigh the intrusion such
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procedures may entail.” Id. at 334. The Court remanded for further
proceedings.
However, the Fourth Amendment analysis alters with respect to spaces
not immediately adjoining the place of arrest, and, concomitantly, changes
when the officer is outside of the home. At this juncture, I now address the
trial court’s application of Buie, which is adopted by the Majority.
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 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.
Trial Court Opinion, 11/6/16, at 2 (citation to transcript omitted).
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I agree that re-entry into the home after Appellee was arrested is
difficult to justify under a pure “officer safety” rationale as expressed in Buie.
Once Officer Crown escorted Appellee outside of the home, he could have
refrained from reentering the bedroom area. 1
However, while Buie tells us that an officer may search the closet of the
area near the arrestee for safety as a matter of Fourth Amendment
sufficiency, it does not follow that an officer safety rationale is the only
condition justifying this search. The Commonwealth argued that exigent
circumstances justified the reentry. “Officer Crown checked the bedroom to
ensure that no one else who might pose a threat or require medical attention
was in that room.” Commonwealth’s brief at 12.2 I agree with the
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1 Buie would permit the challenged search had Officer Crown arrested
Appellee in the bedroom and immediately searched the closet. The opinion
explicitly referenced nearby closets as an area falling within the protective
sweep. “We also hold that as an incident to the arrest the officers could, as a
precautionary matter and without probable cause or reasonable suspicion,
look in closets and other spaces immediately adjoining the place of
arrest from which an attack could be immediately launched.” Maryland v.
Buie, 494 U.S. 325, 334 (1990) (emphasis added).
2 The Commonwealth’s argument interchangeably suggests that Officer Crown
was permitted to enter the closet to search for other perpetrators, i.e.
investigation of an ongoing crime, and search for persons that might require
aid, i.e. potential victims trapped in the home. The exigent circumstances
rationale encompasses elements of both in this situation, where the
responding authorities do not know if other suspects or potential victims were
on-site. Officer Crown’s testimony alluded to the same:
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Commonwealth, and would hold that the trial court misapplied the law and
reverse.
The emergency aid doctrine is summarized as follows:
“[W]arrants are generally required to search a person's
home or his person unless ‘the exigencies of the situation’ make
the needs of law enforcement so compelling that the warrantless
search is objectively reasonable under the Fourth
Amendment.” Mincey v. Arizona, 437 U.S. 385, 393-394, 98
S.Ct. 2408, 57 L.Ed.2d 290 (1978).
One exigency obviating the requirement of a warrant is the need
to assist persons who are seriously injured or threatened with
such injury. “‘The need to protect or preserve life or avoid serious
injury is justification for what would be otherwise illegal absent an
exigency or emergency.’” Id., at 392, 98 S.Ct. 2408
(quoting Wayne v. United States, 318 F.2d 205, 212
(C.A.D.C.1963) (Burger, J.)); see also Tyler, supra, at 509, 98
S.Ct. 1942. Accordingly, law enforcement officers may enter a
home without a warrant to render emergency assistance to an
injured occupant or to protect an occupant from imminent
injury. Mincey, supra, at 392, 98 S.Ct. 2408; see also Georgia
v. Randolph, ante, at 118, 126 S.Ct. 1515, 1525, 164 L.Ed.2d
208 (“[I]t would be silly to suggest that the police would commit
a tort by entering ... to determine whether violence (or threat of
violence) has just occurred or is about to (or soon will) occur”).
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. . . . So once Lewis comes out, I go in. I yell at the door two or
three times for him to come out. I obviously didn't know his name
at the time. I yell and Hand comes out. I take him out front. I give
him to my partner. At this time Highway Patrol had showed up.
With the yelling and screaming, they had given us an assist. So a
couple of units showed up. I hand this defendant off to Officer
Vandermay. I go back in to check the bedroom to secure it
for any other people that are in there.
N.T., 5/26/16, at 15-16 (emphasis added).
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Brigham City, Utah v. Stuart, 547 U.S. 398. 403-04 (2006) (alterations in
original).
Stuart and Commonwealth v. Potts, 73 A.3d 1275 (Pa.Super. 2013),
which applied the emergency aid doctrine, are instructive. In Stuart, four
police officers responded to a home at approximately 3:00 a.m. due to a
complaint of a loud party. The officers heard shouting from inside, and went
down the driveway to investigate. Through a screen door, they saw multiple
adults trying to subdue a juvenile male. The juvenile broke free and struck
one of the adults in the face, causing the victim to spit blood in a nearby sink.
At this point, officers entered the home. The defendants sought to suppress
all evidence obtained following entry, arguing that the warrantless search was
unreasonable. The Supreme Court disagreed, finding that the entry “was
plainly reasonable under the circumstances.”
In these circumstances, the officers had an objectively reasonable
basis for believing both that the injured adult might need help and
that the violence in the kitchen was just beginning. Nothing in the
Fourth Amendment required them to wait until another blow
rendered someone “unconscious” or “semi-conscious” or worse
before entering. The role of a peace officer includes preventing
violence and restoring order, not simply rendering first aid to
casualties; an officer is not like a boxing (or hockey) referee,
poised to stop a bout only if it becomes too one-sided.
Id. at 406 (citations omitted).
In Potts, two police officers were dispatched by 911 to a home for
reported domestic dispute. Upon arrival, they heard screaming and yelling
from the second floor apartment and began knocking on the door. The yelling
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stopped, and after approximately thirty seconds Potts’s fiancée, Ms. Young,
opened the door. She was crying and her clothes were disheveled. Potts ran
into a bedroom. At that point, the officers entered the home and began to
ask Ms. Young questions. Shortly thereafter, Potts exited the bedroom. One
of the officers entered the bedroom to conduct a protective sweep and
observed marijuana in plain view.
Therefore, two searches were at issue: The initial entry into the home,
and the search of the bedroom. With respect to the initial search, we held
that the emergency aid doctrine applied, due to the fact that the officers were
responding to a 911 call for a domestic dispute, heard screaming, and the
appearance of Ms. Young. We concluded that “the totality of the
circumstances justified the police officers' reasonable belief that they needed
to enter Appellant's apartment to ensure that Ms. Young was not in danger or
in need of immediate aid.” Id. at 1281 (citations omitted). With respect to
the second search of the bedroom, we applied Buie and determined that the
officers possessed reasonable suspicion that the bedroom harbored an
individual posing a danger, as Potts had not yet been arrested at the time of
the sweep.
The Majority distinguishes Potts by pointing out that Potts and Ms.
Young remained inside the residence when the bedroom sweep occurred.
Respectfully, I believe that distinction is of no moment, as the emergency aid
doctrine, not a protective sweep as an incident to an arrest, justified the
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search herein. Potts’s application of Buie to the bedroom search, as opposed
to emergency aid principles, is unsurprising as Potts involved investigation of
a domestic disturbance, corroborated when Ms. Young answered the door and
appeared to be in distress. Therefore, the officers in Potts had no reason to
suspect any other type of ongoing crime; moreover, they were speaking to
the probable victim.
In contrast, we must consider the information known to Officer Crown
when he investigated the instant report. The officers arrived shortly after
midnight, the front door was open, and an actor slammed the door shut as
the officer exited his vehicle. A front window of the home was broken, with
the drapes blowing out the window. Officer Crown heard arguing from inside
and observed two males, Appellee and Lewis, with Appellee holding a gun.
These observations corroborated the report of an ongoing crime, and the
situation presented itself as a potential armed home invasion involving an
unknown number of perpetrators. Moreover, a citizen and/or another culprit
could have been hiding in the closet or other area of the structure.3 To say,
as the Majority does, that the search was unreasonable solely because two
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3 The Majority accepts that the limited search occasioned by brushing the
curtain aside was justifiable to determine if anyone inside was in need of aid,
but does not explain why the same logic does not extend to the search of the
closet. The Majority apparently relies on the ex post knowledge that this was
not, in fact, a home invasion as opposed to viewing the objective
reasonableness of the police action at the time.
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men were already in custody outside of the home ignores the fact that the
officers could not know that Appellee and Lewis were the only persons on site,
nor could they be expected to know that Appellee was apparently staying at
the residence and therefore had a reasonable expectation of privacy.
Under the facts known to the police officers at the time, I would find
that there was a compelling government interest in searching for other
occupants or perpetrators, thereby permitting the warrantless search even in
absence of reasonable suspicion. “It does not meet the needs of law
enforcement or the demands of public safety to require officers to walk away
from a situation like the one they encountered here.” Michigan v. Fisher,
558 U.S. 45, 49 (2009) (per curiam); Potts, supra (finding that totality of
the circumstances justified entry to ensure that occupant was not in danger).
Finally, I note that the Majority declares its belief that Officer Crown’s
search was not for safety reasons: “The more reasonable inference is that the
officer entered the bedroom to search for the weapon he had seen in Hand’s
possession.” Majority memorandum at 8. Putting aside the fact that this
statement is supported by nothing except conjecture, its suggestion that the
subjective motivation of Officer Crown is relevant to the lawfulness of the
search is incorrect. Stuart, supra, repeated the general proposition that the
subjective motivation of an officer is irrelevant to the reasonableness of a
search, and made plain that subjective intent remains irrelevant in the
emergency aid context: “It therefore does not matter here-even if their
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subjective motives could be so neatly unraveled-whether the officers entered
the kitchen to arrest respondents and gather evidence against them or to
assist the injured and prevent further violence.” Stuart, supra at 405.
Therefore, for the foregoing reasons, I find that the search was reasonable
and therefore respectfully dissent.
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