Com. v. Bowmaster, R. ( 2014 )


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  • 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.
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    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.
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    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.
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    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
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    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
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    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
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    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
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    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.
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    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
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