Com. v. Wilmer, A. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ASHLEY LAUREN WILMER,
Appellant No. 296 MDA 2016
Appeal from the Judgment of Sentence February 16, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0003487-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 05, 2016
Appellant, Ashley Lauren Wilmer, appeals from the February 16, 2016
judgment of sentence entered following her conviction at a bench trial of
possession of drug paraphernalia. Following our careful review, we affirm.
The trial court summarized the facts of the crime as follows:
On October 27, 2013, Pennsylvania State Trooper Charles
D. Smolleck and Trooper Shoap were on foot patrol in the
Cumberland County portion of Shippensburg, Pennsylvania. The
Troopers came upon [Appellant’s] residence, a sorority house,
and observed multiple individuals standing on the roof yelling
incoherently. Trooper Smolleck also noted a young man who
appeared severely intoxicated who was unsteadily climbing on
the roof about twenty feet from the ground.
Trooper Smolleck was afraid that the young man was
about to fall off the roof and injure himself severely, possibly
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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dying. He and Trooper Shoap approached the front door of the
residence and sought permission to enter, but none of the
people inside would open the door for them. At that time,
Trooper Shoap attempted unsuccessfully to kick in the door.
Then, fearing the imminent danger to the young man’s safety,
Trooper Shoap broke a side window and entered the residence,
immediately heading upstairs to safeguard the young man. In
their efforts to reach the roof, the Troopers were forced to
remove and possibly damage an air conditioning unit from a
window. Unfortunately, by the time they arrived at the rooftop,
the young man had already fallen and was being treated by first
responders.
At this point the Troopers retraced their steps and exited
the residence. While they were exiting, Trooper Smolleck noted
a baggie of marijuana and a marijuana grinder sitting in plain
view on a coffee table. He seized the evidence and brought it
outside to a patrol vehicle where he placed it in a secure
location. Ultimately, these items would not form the basis for
the charges against [Appellant].
After securing the evidence, Trooper Smolleck reentered
the residence and began trying to identify an actual resident of
the house for the purpose of filing an incident report. This was a
less than straightforward task as most of the people present
claimed they were only visitors to the house. Once inside, he
approached [Appellant’s] bedroom and knocked on the door. He
did this without any intention of arresting [Appellant] or anyone
else in the residence, but to document any residents’ names for
his incident report relating to the damage to the window and air
conditioning unit caused by the Troopers in the furtherance of
their duties.
After [Appellant] admitted to being a resident of the
house, Trooper Smolleck began to take down her information.
During their conversation the Trooper noted a glass marijuana
bong and a paraphernalia pipe sitting in plain view. When
asked, [Appellant] admitted to ownership of the contraband. On
that basis, Trooper Smolleck charged [Appellant] with the
possession of drug paraphernalia.
Trial Court Opinion, 4/19/16, at 1–3.
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Appellant was charged with one count of possession of drug
paraphernalia, 35 P.S. § 780-113(a)(32), an ungraded misdemeanor.
Appellant filed a motion to suppress evidence on May 15, 2015; the court
held a hearing on July 6, 2015, following which it denied the motion.
Appellant proceeded to a stipulated nonjury trial and was found guilty as
charged on February 16, 2016. The trial court sentenced Appellant to pay
the costs of prosecution and a $50.00 fine. Appellant filed a timely notice of
appeal on February 19, 2016; both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following single issue for our review:
I. Did the suppression court make an error of law in denying
Appellant’s motion to suppress where the police entry into
Appellant’s residence was without consent, a warrant, or
exigent circumstances?
Appellant’s Brief at 5 (full capitalization omitted).
Appellant assails the trial court’s denial of her suppression motion.
In evaluating a suppression ruling, we consider the evidence of
the Commonwealth, as the prevailing party below, and any
evidence of the defendant that is uncontradicted when examined
in the context of the record. Commonwealth v. Sanders, 42
A.3d 325, 330 (Pa. Super. 2012). This Court is bound by the
factual findings of the suppression court where the record
supports those findings and may only reverse when the legal
conclusions drawn from those facts are in error. Id.
Commonwealth v. Haynes, 116 A.3d 640, 644 (Pa. Super. 2015).
Moreover, on October 30, 2013, our Supreme Court in In re L.J., 79 A.3d
1073 (Pa. 2013), clarified that the scope of review of orders granting or
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denying motions to suppress is limited to the evidence presented at the
suppression hearing. Because Appellant’s suppression hearing post-dates
the filing date of L.J., which was held to be prospective, L.J. applies to this
case. Commonwealth v. Caple, 121 A.3d 511, 517 n.1 (Pa. Super. 2015).
Appellant acknowledges that the troopers’ initial entry into the
residence, where Trooper Shoap broke a window so that he could unlock the
front door, was effectuated in order to remove an intoxicated person who
was in danger of falling from the porch roof of the residence. The people
inside of the house, who were laughing at the troopers, refused to open the
door to admit them. N.T. (Suppression), 7/6/15, at 10. Nevertheless,
Appellant claims that while Trooper Smolleck believed the individual was in
danger of falling from the roof and that entry into the residence was
necessary to safely remove him, there was no evidence that the individual
actually needed emergency aid or that he requested assistance from the
troopers. Appellant’s Brief at 10.
Appellant also maintains that the trooper’s second entry, which
occurred after the individual on the roof had indeed fallen, was without
consent, warrant, or exigent circumstances, and was therefore unlawful.
She suggests that any exigency giving rise to the initial entry had dissipated.
Appellant’s Brief at 15. Appellant fails to cite support for this claim. Id.
The Commonwealth points out Appellant’s acknowledgment of the
validity of the doctrine permitting police to enter a residence without a
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warrant when they reasonably believe someone inside is in need of
emergency assistance. Commonwealth’s Brief at 10. It avers, however,
that Appellant disputes the applicability of the doctrine in this case. The
Commonwealth posits that the relevant question is “whether there was an
objectively reasonable basis for believing that medical assistance was
needed, or persons were in danger.” Id.
The Commonwealth further responds that the troopers’ reentry was a
continuation of the initial entry, which was valid. Commonwealth’s Brief at
11. In support, it cites Commonwealth v. Witman, 750 A.2d 327, 337
(Pa. Super. 2000), where we held that when police are conducting an
investigation based on exigent circumstances, entry and reentry for
purposes of the initial investigation constitutes one continual search.
Our review of the record compels our agreement with the
Commonwealth and the trial court. Appellant is incorrect regarding the
exigency of the initial entry. To claim that an exigency did not exist because
the inebriated individual(s) did not ask for help has no bearing in fact or
reason. This event occurred after midnight, the seven people on the bi-level
roof were screaming and yelling, one individual was separated from the
other six and was stumbling, running back and forth, was visibly intoxicated,
and he ignored police instructions. N.T. (Suppression), 7/6/15, at 3–9.
“Generally, the police will be excused from compliance with the
warrant and probable cause requirements of the Fourth
Amendment to the United States Constitution in only limited
circumstances. One of these circumstances is when the police
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reasonably believe that someone within a residence is in need of
immediate aid.” Commonwealth v. Galvin, 603 Pa. 625, 985
A.2d 783, 795 (2009), cert. denied, 559 U.S. 1051, 130 S. Ct.
2345, 176 L. Ed. 2d 565 (2010) (citations omitted). Additionally,
“it is widely recognized that situations involving the potential for
imminent physical harm in the domestic context implicate
exigencies that may justify limited police intrusion into a
dwelling in order to remove an item of potential danger.”
Commonwealth v. Wright, 560 Pa. 34, 742 A.2d 661, 664
(1999) (citations omitted). The relevant inquiry is “whether
there was an objectively reasonable basis for believing that
medical assistance was needed, or persons were in danger.”
Michigan v. Fisher, 558 U.S. 45, 49, 130 S. Ct. 546, 175
L. Ed. 2d 410 (2009) (citation and internal quotation marks
omitted) [emphasis added]. “The calculus of reasonableness
must embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving.” Ryburn v. Huff,
___ U.S. ___, 132 S. Ct. 987, 992, 181 L. Ed. 2d 966 (2012)
(citation omitted).
Commonwealth v. Potts, 73 A.3d 1275, 1280–1281 (Pa. Super. 2013)
(emphasis added).
Here, police concern for the inebriated individual running on the roof
obviously was justified. N.T. (Suppression), 7/6/15, at 9. The troopers’
quick thinking in contacting “fire, and EMS and Shippensburg Borough” was
fortuitous, because as the troopers feared, by the time they were able to
gain entry to the home, that person had already fallen, and the EMS
personnel were there to render aid. Id. at 9–11.
We reject Appellant’s suggestion that the threat of injury to the person
on the roof was “simply a possibility” and “not imminent,” and therefore,
police should have ignored the exigency because the inebriated man
obviously did not want their help. Appellant’s Brief at 14. Such
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abandonment of their safety objective because the party-goers at the
sorority house refused to open the door would have amounted to a
dereliction of the troopers’ duty. “Indeed, the officers would have been
remiss in their duty had they abandoned the scene simply because no one
answered the door.” See Commonwealth v. Davido, 106 A.3d 611, 622
(Pa. 2014) (in domestic dispute case, where police officers had a reasonable
belief that person inside residence needed assistance, exigent circumstances
existed to support officers’ warrantless entry into residence). As our
Supreme Court explained:
The U.S. Supreme Court has recognized that the “Fourth
Amendment does not bar police officers from making warrantless
entries and searches when they reasonably believe that a person
within is in need of immediate aid.” Mincey v. Arizona, 437
U.S. 385, 392, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). See also
Commonwealth v. Miller, 555 Pa. 354, 724 A.2d 895, 900
(1999) (limited number of circumstances will excuse police from
compliance with Fourth Amendment warrant and probable cause
requirements; one such circumstance occurs when police
reasonably believe that someone within residence is in need of
immediate aid); Commonwealth v. Norris, 498 Pa. 308, 446
A.2d 246, 248 (1982) (warrantless entry into residence may be
permitted, inter alia, “when the officers may in good faith believe
that they or someone within are in peril of bodily harm.”);
accord Commonwealth v. Galvin, 603 Pa. 625, 985 A.2d 783,
795–96 (2009).
Id. at 622. The Davido Court continued:
We agree that “[e]rring on the side of caution is exactly what we
expect of conscientious police officers ... where rescue is the
objective, rather than a search for crime,” “and we should not
second-guess the officers’ objectively reasonable decision to
enter and search a residence without a warrant in such a case.”
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Id. at 624–625 (quoting U.S. v. Black, 482 F.3d 1035, 1040 (9th Cir.
2007)). In light of the totality of the circumstances, police entry to the
sorority house was reasonable under the circumstances.
We also conclude that police reentry into the sorority house was
reasonable. As the trial court observed:
[T]he Troopers’ subsequent reentry into the residence after
exiting to secure contraband was also justified by the exigent
circumstances that gave rise to the initial entry. The initial
justified warrantless entry required the Troopers to damage
private property in the furtherance of their duty. This demanded
a second entry to establish the identity of the residents of the
home to file an incident report. As such, the reentry was not
unlawful and the drug paraphernalia discovered in plain sight
was not subject to suppression.
Trial Court Opinion, 4/19/16, at 4.
From the time of their initial entry, the troopers were engaged in only
one endeavor with one goal—aiding the man on the roof. Once they gained
access to the house, they proceeded to the room that would give them
access to the porch roof. N.T. (Suppression), 7/6/15, at 11. To reach the
man, to even see the man, they had to remove a window air conditioner
unit. Id. Once they removed it, “the individual was gone, and we observed
him laying flat on his back on the ground with the fire and EMS [personnel]
tending to him and bringing a stretcher and a neck brace for the individual.”
Id.
Trooper Smolleck testified, “We turned around to exit the
residence . . . . [W]e retraced our steps back downstairs. At that point is
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whenever I saw . . . a small baggie of marijuana and a marijuana grinder” in
plain view. N.T. (Suppression), 7/6/15, at 12. Trooper Smolleck placed the
contraband in his patrol car, and as stated supra, this contraband did not
form the basis for the charge against Appellant. Because the troopers had
broken a window to gain access and damaged the air conditioner unit, they
had to complete an incident report. Trooper Smolleck testified as follows:
Because now we need[ed] to type up an incident report
stating the reason the window was broken, the reason that we
needed to gain entry, and then if the air conditioner was broken
from us pulling it out of the window, possibly why the air
conditioner was broken. We needed all the individuals [who]
lived there for the incident report and documentation to the
Commonwealth on the damages to the building.
Id. at 13. Thus, Trooper Smolleck returned to the house and knocked on an
interior door, which was opened from the inside. Id. at 14. He asked “who
lived at the residence”; Appellant raised her hand and “approximately five
other young ladies in there . . . said we are just here visiting.” Id. Trooper
Smolleck explained his purpose of documenting names for the incident
report, and Appellant said, “Okay, that’s fine, I will give you my
information.” Trooper Smolleck continued, “At that point I started to gather
her information, and in plain view on a nightstand beside her was a glass
marijuana bong and a paraphernalia pipe, at which point I asked whose that
was and [Appellant] said that it was hers.” Id. The bong and pipe formed
the basis for the instant charge. Id.
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There was no unwarranted delay in time, nor was there any purposeful
search. The items taken into the custody of police were in plain view as the
trooper completed his report. We reiterate that when police are properly
authorized to enter a dwelling under the exigent circumstances doctrine,
they are also authorized to return to complete the necessary paperwork
required by the emergency situation that allowed them to enter the dwelling
in the first place. It was entirely reasonable for Trooper Smolleck to reenter
the sorority house to obtain the name(s) of people who lived there in light of
the forced damage to the property. While in the house for this legitimate
purpose, the officers observed in plain view drug paraphernalia. There was
no inspection of drawers or closets; indeed, there was no search at all. The
officers’ immediate return to the residence would seem to be normal and
reasonable police procedure under the circumstances. Trooper Smolleck’s
reentry into the sorority house and seizure of contraband in plain view did
not exceed the bounds permissible under the exigency rule. Furthermore,
Trooper Smolleck’s return to complete his report merely was part of one
continuous episode, initially justified by exigent circumstances. Appellant
cites to no controlling case law, and there is no logical basis for holding that
a single entry is mandated under these circumstances, nor any rule that
prohibits an officer, legitimately on the premises, from returning to the
residence to perform the police functions which are then immediately
justified and required. Cf. Witman, 750 A.2d at 337 (where police are
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conducting a valid search pursuant to a defendant’s implied consent, the
initial investigation in its entirety is permissible and such an investigation
may require officials “to remain on the scene for an extended period of time
repeatedly entering or re-entering the building . . . .”) (citing Michigan v.
Tyler, 436 U.S. 499, 510 n.6 (1978)).
Accordingly, we conclude that the trial court properly denied
Appellant’s motion to suppress evidence. Therefore, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2016
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