Com. v. Loughnane, D. ( 2018 )

J. A34007/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 596 MDA 2014
:
DANIEL F. LOUGHNANE :
Appeal from the Order Entered March 17, 2014,
in the Court of Common Pleas of Luzerne County
Criminal Division at No. CP-40-CR-0000046-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 21, 2018
This case comes before us on remand from the Supreme Court of
Pennsylvania for further consideration consistent with its opinion. See
Commonwealth v. Loughnane, 173 A.3d 733, 746 (Pa. 2017).
Specifically, our supreme court directed us to determine whether exigent
circumstances existed, permitting the police to enter Daniel F. Loughnane’s
(hereinafter, “appellee”) driveway and seize his Ford F-350 pickup truck
without a warrant. Upon careful review, we affirm the suppression court’s
order as it pertains to the suppression of any evidence obtained from
appellee’s truck.1
1 Upon our initial review, we also considered whether the suppression court
erred when it excluded testimony pertaining to security tapes and still
photographs and whether the suppression court abused its discretion when it
suppressed the audio recording of John Schenk, III’s 911 call.
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As we noted in our initial opinion, the applicable standard of review is
well settled.
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 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. Miller, 56 A.3d 1276, 1278-1279 (Pa.Super. 2012)
(citations omitted), quoted by Loughnane, 128 A.3d at 812.
Both the United States Constitution and the
Pennsylvania Constitution guarantee that individuals
shall not be subject to unreasonable searches or
seizures.
The right of the people to be secure in
their persons, houses, papers, and
effects, against unreasonable searches
and seizures, shall not be violated, and
no Warrants shall issue, but upon
probable cause, supported by Oath or
affirmation, and particularly describing
the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV.
The people shall be secure in their
persons, houses, papers and possessions
from unreasonable searches and
Commonwealth v. Loughnane, 128 A.3d 806, 812 (Pa.Super. 2015). Our
supreme court denied allocatur as to these issues. Commonwealth v.
Loughnane, 158 A.3d 1224 (Pa. 2016).
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seizures, and no warrant to search any
place or to seize any person or things
shall issue without describing them as
nearly as may be, nor without probable
cause, supported by oath or affirmation
subscribed to by the affiant.
Pa. Const. Art. I, § 8. A search or seizure conducted
without a warrant is, under the Fourth Amendment
and Article I, Section 8, presumed to be
unreasonable. Commonwealth v. McCree, 924
A.2d 621, 627 (Pa. 2007) (citations omitted).
Evidence obtained as a result of an unlawful search
is subject to the fruit of the poisonous tree doctrine.
The United States Supreme Court has stated that
any material, tangible, or verbal evidence “obtained
either during or as a direct result of an unlawful
invasion” is inadmissible at trial. Wong Sun v.
United States, 371 U.S. 471, 485 (1963).
Our supreme court further stated:
We need not hold that all evidence is
“fruit of the poisonous tree” simply
because it would not have come to light
but for the illegal actions of the police.
Rather, the more apt question in such a
case is “whether, granting establishment
of the primary illegality, the evidence to
which instant objection is made has been
come at by exploitation of that illegality
or instead by means sufficiently
distinguishable to be purged of the
primary taint.”
Commonwealth v. Cunningham, 370 A.2d 1172,
1176-1177 (Pa. 1977), quoting Wong Sun, 371 U.S.
at 487-488.
Pennsylvania courts have recognized that the
protections afforded to individuals under both the
Fourth Amendment and Article I, Section 8 are
applicable to the curtilage of a person's home.
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Commonwealth v. Bowmaster, 101 A.3d 789, 792
(Pa.Super.2014) (citations omitted). This court
defined the curtilage of the home as places “where
the occupants have a reasonable expectation of
privacy that society is prepared to accept.” Id. citing
Commonwealth v. Johnson, 68 A.3d 930, 935 n. 3
(Pa.Super. 2013) (citations omitted).
Loughnane, 128 A.3d at 815-816.
In 2014, our supreme court adopted the federal automobile exception
in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). The federal
automobile exception permitted the police to conduct a warrantless search
on a vehicle upon the establishment of probable cause; however, it was no
longer necessary to demonstrate exigent circumstances “beyond the mere
mobility of the vehicle.” Id. at 138.
In the instant case, our supreme court held that the federal
automobile exception did not apply to appellee’s truck when it was parked
on his private residential driveway, as the driveway constituted curtilage.
See Loughnane, 173 A.3d at 745. In light of our supreme court’s holding,
the Commonwealth must demonstrate both probable cause and exigent
circumstances beyond the mere mobility of the vehicle in order to seize a
vehicle from an individual’s private driveway without a warrant. Accordingly,
we must now determine whether the Commonwealth demonstrated exigent
circumstances beyond the mere mobility of appellee’s truck.
When determining whether exigent circumstances exist, several
factors must be considered, including “a likelihood that evidence will be
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destroyed if police take the time to obtain a warrant.” Commonwealth v.
Lee, 972 A.2d 1, 4 (Pa.Super. 2009), quoting Commonwealth v. Roland,
637 A.2d 269, 270-271 (Pa. 1994). “Moreover, this Court has observed
that, ‘the Commonwealth must present clear and convincing evidence that
the circumstances surrounding the opportunity to search were truly exigent,
[] and that the exigency was in no way attributable to the decision by police
to forego seeking a warrant.’” Id., quoting Commonwealth v. Rispo, 487
A.2d 937, 940 (Pa.Super. 1985).
The Commonwealth argues that the following exigent circumstances
justified seizing appellee’s truck without a warrant:
[not knowing] the whereabouts of [appellee;] not
getting cooperation from [appellee’s] family, friends
and employers about his whereabouts; [the police]
had been made aware that a spare set of the keys
were in the toolbox of the vehicle readily available to
anyone who decided to remove it; [and the police]
did not have additional law enforcement available to
sit on the vehicle and was concerned that evidence
on the vehicle may be compromised by the weather.
Commonwealth’s brief at 21.
A reading of the suppression hearing testimony belies the
Commonwealth’s assertion of exigent circumstances. Wilkes-Barre City
Police Department Detective David Sobocinski testified that he received a
phone call notifying him of the presence of the truck in appellee’s driveway
on the afternoon of August 8, 2012. (Notes of testimony, 2/18/14 at 169.)
Detective Sobocinski further testified that he was not able to simultaneously
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secure the truck and obtain a search warrant, as the process of obtaining a
warrant would take approximately 2-3 hours. (Id. at 169-170.) Due to rain
in the forecast for the evening of August 8, 2012, Detective Sobocinski
decided to seize the truck without a warrant and called the Wilkes-Barre city
tower and directed him to tow the truck to the Wilkes-Barre city garage.
(Id. at 167-168; 171.) Detective Sobocinski testified that the truck was not
actually seized until the early morning hours of August 9, 2012. (Id. at
184-185; 199.)
Detective Sobocinski further testified that he originally requested a
uniformed Wilkes-Barre police officer to “stand by,” but Detective Sobocinski
failed to specifically ask for coverage for the purposes of securing the truck
while a search warrant was obtained.2 (Id. at 175-176.)
Detective Sobocinski also failed to ask the police officer sent by the
neighboring Hanover Police Department to secure the truck while he
obtained a search warrant. (Id. at 178.)
Based on the record before us, we find that the Commonwealth failed
to establish clear and convincing evidence of exigent circumstances that
would justify seizing appellee’s truck without a warrant. While
Detective Sobocinski testified that the threat of rain in the weather forecast
2 Detective Sobocinski testified that it is common practice for a detective in
plain clothes to have a uniformed officer present to “stand by” to show a
visible police presence and because “people feel more comfortable when a
police car is there.” (Id. at 175.)
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for the evening of August 8, 20123 necessitated the truck to be seized
without a warrant, the truck was not actually seized until the early morning
hours of August 9, 2012. Such a delay in the seizure of the truck belies the
Commonwealth’s argument that a search warrant could not be obtained in a
timely manner because Detective Sobocinski testified that it would only take
2-3 hours to obtain a warrant. The record establishes that
Detective Sobocinski could have obtained a search warrant in the time
between when he was notified of the truck’s location and the time the truck
was actually seized. Additionally, we agree with the suppression court’s
conclusion that Detective Sobocinski could have requested law enforcement
assistance to secure the truck while he obtained a search warrant.
In our initial opinion, we remanded to the suppression court for a
determination of whether the police established probable cause to seize
appellee’s truck without a warrant. Loughnane, 128 A.3d at 817. Because
we have determined that the Commonwealth failed to demonstrate that
there were exigent circumstances that would justify seizing appellee’s truck
without a warrant, this issue is now moot.
We, however, also reversed the part of the suppression court’s order
in which the suppression court did not permit Peter Sladin, an employee of
Legion Security monitoring the Hawkeye Camera Center on the night of the
incident, to testify as to the place and time of a still photograph that Sladin
3 The incident central to this case took place on July 24, 2012.
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took from video surveillance cameras4 in the area of 199 Hazle Street in
Wilkes-Barre, Pennsylvania. See id. at 809, 812. We held that Sladin
would be able to authenticate the photograph pursuant to Pa.R.E. 901(b)(1)
and (9), and that he should be permitted to testify. Id. at 814. We,
therefore, vacate the suppression court’s March 17, 2014 order and remand
for further proceedings consistent with this memorandum.
Order affirmed in part and reversed in part.5 Case remanded for
further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2018
4The Hawkeye camera system only preserves video footage for 10-14 days.
At no point was the video intentionally erased or deleted. Id. at 810.
5 See id. at 814-815, 818.
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