Com. v. Paul, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TAARIQ T. PAUL :
:
Appellant : No. 790 EDA 2019
Appeal from the Judgment of Sentence Entered February 6, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002057-2018
BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED APRIL 06, 2020
Appellant, Taariq T. Paul, appeals from the aggregate judgment of
sentence of 369 days to 23 months of confinement followed by three years of
probation, which was imposed after his conviction at a stipulated bench trial
for manufacture, delivery, or possession with intent to manufacture or to
deliver a controlled substance (“PWID”).1 Appellant contends that the trial
court erred by denying his motion to suppress. After careful review, we affirm.
The facts presented during the suppression hearings are as follows. On
February 3, 2018, “shortly after 5:00 in the afternoon[,]” Sergeant
Timothy Walters and Officer Matthew Meitzler had just finished responding to
an unrelated call on Keim Street in Pottstown, Montgomery County, when they
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
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began to smell “this strong odor of . . . unburnt marijuana[.]” N.T., 2/5/2019,
at 7-8, 11. The odor became stronger as they walked towards Appellant’s
home, and they determined that it was emanating from his house. Id. at 9.
They knocked on the door. Id. at 12; N.T., 2/6/2019, at 34-35.
Approximately 60 to 90 seconds passed before Appellant answered the door.
N.T., 2/6/2019, at 35. The officers asked for Appellant’s “permission to search
the residence[,]” which he denied. N.T., 2/5/2019, at 14. The officers
“advised him that at this point [that they] were going to secure his
residence[.]” Id. When later asked the reason for securing the residence,
Sergeant Walters explained that they were “[m]aking sure that what [they]
suspected was in the house was not being destroyed . . . that evidence was
not being tampered with or destroyed.” Id. at 15.
While Officer Meitzler left the home to obtain a warrant, Sergeant
Walters waited with Appellant and his girlfriend in the living room of the home.
Id. at 14-15. Appellant then “requested to go upstairs and get his wallet”; a
third officer who had arrived at the scene “for officer safety purposes[,]”
Officer Brandon Unruh, accompanied Appellant upstairs. Id. at 15, 42; N.T.,
2/6/2019, at 18, 21. While upstairs, Officer Unruh observed two large
vacuum-sealed bags of marijuana on the floor of the master bedroom, in plain
view, and called Officer Meitzler on the telephone to report his observation,
so that Officer Meitzler could include this information in his affidavit of
probable cause for the search warrant. Id. at 18. Officer Meitzler “returned
with the warrant and he and another officer searched the home.
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Approximately 10 [pounds] of marijuana, drug paraphernalia, and a loaded
.22 caliber pistol were recovered from the search.” Trial Court Opinion, dated
July 2, 2019, at 3 (citing N.T., 2/6/2019, at 16-17).
[Appellant] was charged with numerous violations of the
Controlled Substance, Drug, Device, and Cosmetic Act.[2] On
August 21, 2018, [Appellant] filed a suppression motion alleging
that the police created an exigency to justify a warrantless entry
and search of his home. Following a two day hearing, th[e trial
c]ourt denied the motion. [Appellant] proceeded immediately to
a stipulated bench trial and was convicted of one count of [PWID]
and sentenced[.] . . . On March 8, 2019, he filed a timely notice
of appeal. By Order of March 11, 2019 th[e trial c]ourt directed
him to file a concise statement pursuant to Pa. R.A.P. 1925 (b).
He has since complied with that directive.
Id.3
Appellant presents the following issue for our review:
Did the trial [c]ourt err in denying [Appellant]’s motion to
suppress, in which [Appellant] contended that the warrantless
entry into the home was made pursuant to exigent circumstances
that were created by actions of the police?
Appellant’s Brief at 1.
In reviewing the denial of a suppression motion, our role is to
determine whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only the
evidence of the Commonwealth 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 suppression court’s factual
findings are supported by the record, we are bound by these
findings and may reverse only if the court’s legal conclusions are
erroneous. Where, as here, the appeal of the determination of
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2 35 P.S. §§ 780-101 to 780-144.
3 The trial court entered its opinion on July 2, 2019.
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the suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to our plenary review.
Commonwealth v. Yim, 195 A.3d 922, 926 (Pa. Super. 2018) (citations and
internal brackets omitted). Our scope of review from a suppression ruling is
limited to the evidentiary record created at the suppression hearing.
Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018).
In the current action, Appellant argues that “a police-created exigency
[was] utilized to gain forcible and warrantless entry into [his] residence” and,
hence, that “[a]ll of the evidence obtained after the knock on the door,
including that obtained subsequent to issuance of the search warrant, should
be suppressed.” Appellant’s Brief at 5, 8.
Exigent circumstances are an exception to the warrant requirement,
excusing the need for a warrant where “prompt police action is imperative” -
i.e., when the delay in obtaining a search warrant would result in personal
injury or the loss of evidence. Commonwealth v. Hakim Johnson, 969
A.2d 565, 569 (Pa. Super. 2009) (citation omitted); accord Schmerber v.
California, 384 U.S. 757 (1966). The classic examples of exigent
circumstances are where someone is yelling for help or where a defendant is
flushing drugs down the toilet. See, e.g., Commonwealth v. Potts, 73 A.3d
1275, 1275, 1280 (Pa. Super. 2013) (when police arrived, they heard
screaming and yelling from appellant’s apartment; their warrantless entry and
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search was proper, as one exception to the warrant requirement “is when the
police reasonably believe that someone within a residence is in need of
immediate aid” (quoting Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa.
2009)); United States v. Fiasche, 520 F.3d 694 (7th Cir. 2008) (after seeing
police, defendant yelled “hold on,” followed by “flushing sounds”; it was
reasonable to conclude that drugs would have been flushed down the toilet in
the time it would take to obtain a search warrant).
Various factors need to be taken into account to assess the
presence of exigent circumstances; for example: (1) the gravity
of the offense; (2) whether the suspect is reasonably believed to
be armed; (3) whether there is a clear showing of probable cause;
(4) whether there is a 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 is peaceable; (7) the timing of the entry;
(8) whether there is hot pursuit of a fleeing felon; (9) whether
there is a likelihood that evidence will be destroyed if police take
the time to obtain a warrant; and (10) whether there is a danger
to police or other persons inside or outside of the dwelling to
require immediate and swift action.
Commonwealth v. Brian Johnson, 68 A.3d 930, 937 (Pa. Super. 2013)
(citation and internal brackets omitted).
In the current appeal, the officers clearly had probable cause as soon as
they determined that the odor of marijuana was emanating from Appellant’s
home. N.T., 2/5/2019, at 8-9; see Brian Johnson, 68 A.3d at 937 (“whether
there is a clear showing of probable cause”). The officers knocked on the door
at about 5:00 p.m. to inquire about the smell of marijuana and waited a
minute or more for Appellant to open the door, N.T., 2/5/2019, at 11-12; N.T.,
2/6/2019, at 34-35, and thereby “entered the home in the least intrusive way
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possible[.]” Trial Court Opinion, dated July 2, 2019, at 5; see
Brian Johnson, 68 A.3d at 937 (“whether the entry is peaceable” and “the
timing of the entry”). The officers entered the home “to secure” it “to prevent
the destruction of evidence” and, to a lesser extent, for purposes of “officer
safety[.]” Trial Court Opinion, dated July 2, 2019, at 5-6; see also N.T.,
2/5/2019, at 14-15 (Sergeant Walters testified that the purpose of entry was
to prevent the destruction of evidence and an additional officer was called to
the home for officer safety); Brian Johnson, 68 A.3d at 937 (“whether there
is a likelihood that evidence will be destroyed if police take the time to obtain
a warrant” and “whether there is a danger to police or other persons inside or
outside of the dwelling to require immediate and swift action”);
Hakim Johnson, 969 A.2d at 569 (exigent circumstances excusing the need
for a warrant include when the delay in obtaining a search warrant would
result in loss of evidence); see also Schmerber, 384 U.S. 757; Fiasche, 520
F.3d 694 (potential destruction of drugs creates exigent circumstances).
Accordingly, the clear showing of probable cause, the peaceable entry
at a reasonable hour, and concerns over the loss of evidence and officer safety
combine to establish exigent circumstances and, consequently, that the
officers did not need a warrant prior to entering Appellant’s home. See
Hakim Johnson, 969 A.2d at 569; see also Schmerber, 384 U.S. 757.
Based on the foregoing, the trial court did not err by denying Appellant’s
motion to suppress. Ergo, Appellant is not entitled to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2020
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