Com. v. Layer, S. ( 2023 )

J-S21043-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SAQUANA TAWANE LAYER : No. 1489 MDA 2022
:
Appeal from the Order Entered October 13, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005925-2021
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED NOVEMBER 08, 2023
The Commonwealth of Pennsylvania appeals from the order entered in
the Court of Common Pleas of York County (trial court) granting the motion
to suppress evidence filed by Saquana Tawane Layer (Layer). The
Commonwealth challenges the trial court’s application of the protective sweep
and plain view exceptions to the search warrant requirement. We affirm.1
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* Retired Senior Judge assigned to the Superior Court.
1 This interlocutory appeal is taken as of right pursuant to Pennsylvania Rule
of Appellate Procedure 311. See Pa.R.A.P. 311(d).
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I.
A.
This case arises from the arrest of Layer’s co-defendant, Dominique
Tashawn-Tyrell Hightower (Hightower), on November 3, 2021, on the front
porch of their two-story rowhome on outstanding charges of fleeing or
attempting to elude a police officer. Police conducted surveillance on the
property for five days before the arrest and observed only Hightower, Layer
and their two young children entering and exiting the house.
During a protective sweep of the residence incident to Hightower’s arrest
after he had been detained, the arresting officer, York City Police Officer Peter
Fouad, observed a small amount of loose marijuana, foil bags, a box of
sandwich baggies and gelato resealable bags on top of a dresser located in
the second-floor master bedroom. These observations formed the basis for
the application of a search warrant for the residence. During execution of the
search warrant, police recovered quantities of marijuana, numerous individual
packages of crack/powder cocaine, fentanyl packed for sale, a significant
amount of cash, packaging material, a digital scale and a key fob for a Honda
Accord parked directly in front of the home. A handgun and loaded magazine
were later recovered from the Honda Accord after police obtained a warrant
to search it. Layer was charged with four counts of possession with intent to
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deliver a controlled substance (PWID) and one count of criminal conspiracy to
commit PWID.2
B.
Layer filed a motion to suppress the evidence and the trial court held a
hearing on April 8, 2022, at which Detective Kyle Pitts and Police Officers
Adam Northstein and Peter Fouad appeared as witnesses. Detective Pitts
testified that he has worked for the police department for 14 years and that
he assisted in arresting Hightower on November 3, 2021. Before the arrest,
Detective Pitts had developed information from multiple confidential sources
indicating that Hightower was involved in the distribution of illegal narcotics
and was likely in possession of a firearm.
The detective advised that the U.S. Marshalls Fugitive Task Force and
various city officials were involved in execution of the arrest warrant. The
police team knocked and announced their presence and one of the officers
observed movement at a second-floor window when someone moved the
blinds. They continued to announce their presence for several minutes until
Hightower said on the other side of the door that he was coming out.
Hightower was taken into custody after a brief struggle where he failed to
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2 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903(a)(1). Co-defendant
Hightower was charged with four counts of PWID and one count each of
criminal conspiracy to commit PWID and person not to possess a firearm. He
has filed an appeal at J-S21044-23 and we have issued a nearly identical
Memorandum in that case.
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comply with verbal commands. While he was being taken to the ground and
handcuffed, someone from inside the residence attempted to shut the front
door.
The police team continued into the residence to conduct a security
sweep. Detective Pitts explained that protective sweeps are always conducted
when executing an arrest warrant to “look for any other persons within the
residence that could potentially harm officers on scene.” (N.T. Suppression,
4/08/22, at 9). Layer and two young children were quickly located within the
house and they were not handcuffed as they were not considered a safety
threat. (See id. at 20-21).
On cross-examination, Detective Pitts explained that police surveillance
of the residence before the arrest was limited to the front door and did not
include the back door because of positioning and manpower constraints. He
clarified that during the arrest, Hightower was pulled out of the residence and
was arrested on the front porch. Police used some degree of force to pass
through the door to conduct the protective sweep, as someone was shutting
the front door from inside the residence. (See id. at 32). Detective Pitts
relayed that police immediately encountered Layer on the first floor, that one
of the children was with her and another child was coming down the stairs.
(See id. at 33). He testified that police proceeded upstairs to look for persons
that could cause harm, and while upstairs, another officer pointed out to him
loose marijuana on a dresser in the master bedroom.
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Officer Northstein testified that he has been a police officer for
approximately five years and that during execution of the arrest warrant he
was at the front of the residence watching the second-floor windows. He
stated that upon the initial knock and announcement, a set of blinds on a
second-floor window moved and a person looked out and immediately shut
the blinds again. The officer participated in conducting the protective sweep,
as was customary when making an arrest “to make sure there are no other
threats immediately inside that residence.” (See id. at 43).
Officer Fouad testified that he has worked for the police department for
four years and was part of the entry team in executing the arrest warrant.
Because Hightower initially stood at the front door and ignored commands
that he come out, the officers pulled him away from the door and took him to
the ground to handcuff him. During this time, Hightower appeared to be trying
to talk to someone inside the residence to his left. (See id. at 52). Officer
Fouad arrested Hightower, patted him down and searched him. Officer Fouad
then handed Hightower off to another officer and he entered the residence to
join the police team already conducting the protective sweep. Officer Fouad
proceeded to the master bedroom to make sure it was clear and observed foil
bags, a box of sandwich baggies, gelato resealable bags and loose marijuana
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sitting on top of a dresser.3 As a result of the items he observed during the
sweep, police obtained a search warrant for the residence.
Officer Fouad testified that he executed the search warrant and that a
black hoodie collected in the search held a key fob for the Honda Accord
parked in front of the residence. Officer Fouad averred that when standing
outside the vehicle, he observed the grip of a handgun sitting under the
driver’s seat. He seized the firearm and cleared it, but did not perform any
other search of the vehicle at that time. A search warrant was obtained for
the vehicle after a canine hit on it. (See id. at 57).
On cross-examination, Officer Fouad testified that after Hightower was
handcuffed and Layer and the children were located in the residence, he
believed there were other potential threats or dangers within the home “based
on the movement that they called out when we were outside the house.” (Id.
at 59-60). He agreed with defense counsel that no person could fit within the
drawers of the dresser in the master bedroom and that no one could have
positioned themselves behind the dresser because it was against a wall. (See
id. at 62). Officer Fouad testified that he believed based on his training and
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3 Officer Fouad also testified that the top drawer of the dresser was open and
he observed wads of cash in the drawer in plain view. (See id. at 54).
However, the trial court did not find this testimony credible because it was
inconsistent with the evidentiary photographs of the dresser showing the
drawer closed. (See Trial Court Opinion, 10/13/22, at 9). The Commonwealth
is not contesting the trial court’s finding concerning the cash on appeal. (See
Commonwealth’s Brief, at 10 n.1).
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experience that the baggies and other materials he observed alongside the
loose marijuana were packaging for marijuana. When asked to identify the
marijuana in an evidentiary photograph of the dresser taken at the scene, he
circled two small “specks.” (Id. at 65).
The trial court deferred ruling on the motion pending the submission of
briefs. On October 13, 2022, the court entered an Order and Opinion granting
suppression of the evidence seized during the search of the residence and the
vehicle. The trial court held as an initial matter that under the circumstances
of Hightower’s arrest, there was a need for police to conduct a limited
protective sweep to ensure officer safety and pointed to police observation of
movement in the upstairs window blind, the resistance they faced from
Hightower at the front door during his arrest, the attempt of someone within
the residence to close the door, and the fact that the officers could not see
the back of the house. (See Trial Ct. Op., 10/13/22, at 7-8). However, the
court went on to hold that “the protective sweep exceeded the cursory
inspection allowed under such conditions as there were not enough articulable
facts and inferences to give rise to reasonable suspicion to conduct a more
thorough search of the dresser area.” (Id. at 8).4 The court additionally found
that because the loose “tiny specks” of marijuana and the wads of cash were
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4 See Maryland v. Buie, 494 U.S. 325 (1990) (outlining parameters for lawful
protective sweep).
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the probable cause given to obtain the search warrant for the residence which,
in turn, led to the search warrant for the vehicle, the warrants were invalid
and the evidence seized must be suppressed. (See id. at 9-10).
With regard to the Commonwealth’s position that the items on the
dresser including the loose marijuana were in plain view, the court indicated
in its Rule 1925 opinion that it did not find credible the proposition that “a
reasonably cautious man conducting a protective sweep to search for persons
would have spotted tiny specks of loose marijuana” among a variety of items.
It reiterated that “the cursory inspection allowed under a protective sweep
was surpassed because law enforcement overstepped and abused the
protective sweep to conduct an evidentiary search.” (See Trial Ct. Op.,
12/22/22, at 9-10). The Commonwealth timely appealed and it and the trial
court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).
II.
The Commonwealth contends that the trial court erred in granting
Layer’s suppression motion where the protective sweep and plain view
doctrine justified the search of her residence and seizure of items therein.
(See Commonwealth’s Brief, 10-19).5 It maintains that because the trial court
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5
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
(Footnote Continued Next Page)
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determined that the protective sweep of the residence incident to Hightower’s
arrest was constitutional,6 the marijuana detritus and packaging material
observed on top of the dresser was admissible pursuant to the plain view
exception to the warrant requirement. (See id. at 11, 15).
We begin by observing that “both the Fourth Amendment of the United
States Constitution and Article I, Section 8 of the Pennsylvania Constitution
guarantee individuals freedom from unreasonable searches and seizures.”
Commonwealth v. Heidelberg, 267 A.3d 492, 502 (Pa. Super. 2021) (en
banc), appeal denied, 279 A.3d 38 (Pa. 2022) (citation omitted). “As a general
rule, a warrant stating probable cause is required before a police officer may
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entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. 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.
Our standard of review is restricted to establishing whether
the record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression court’s
legal conclusions.
Further, it is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to
be given their testimony.
Commonwealth v. Ross, 2023 WL 4068547, at *2 (Pa. Super. filed June 20,
2023) (citations omitted).
6 The Commonwealth’s assertion that the trial court found the protective
sweep constitutional ignores the court’s ultimate conclusion that the scope of
the sweep exceeded what is lawfully permissible.
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search for or seize evidence.” Id. (citation omitted). “Absent the application
of one of a few clearly delineated exceptions, a warrantless search or seizure
is presumptively unreasonable.” Id. (citation omitted). “One well-recognized
exception to the warrant requirement is the protective sweep.”
Commonwealth v. Taylor, 771 A.2d 1261, 1267 (Pa. 2001).
Police may perform a ‘protective sweep’ as an incident to a
lawful arrest, in order to protect the safety of police officers and
others. See Buie v. Maryland, 494 U.S. 325 (1990). In such
circumstances, officers may look into spaces immediately
adjoining the place of arrest from which an attack could be
immediately launched without any degree of suspicion other than
that necessary to support the arrest. A protective sweep
beyond such ‘immediately adjoining’ areas is proper if
police can ‘articulate specific facts to justify a reasonable
fear’ for the safety of police officers or others. We consider
the information available to police at the time of the sweep from
the perspective of a reasonably prudent police officer.
Commonwealth v. Hall, 199 A.3d 954, 959 (Pa. Super. 2018) (some
citations and quotation marks omitted).7
In Buie, the United States Supreme Court emphasized:
. . . that such a protective sweep, aimed at protecting the
arresting officers, if justified by the circumstances, is nevertheless
not a full search of the premises, but may extend only to a cursory
inspection of those spaces where a person may be found. The
sweep lasts no longer than is necessary to dispel the
reasonable suspicion of danger and in any event no longer
than it takes to complete the arrest and depart the
premises.
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7 The Pennsylvania Constitution applies the same standards to protective
sweeps as the United States Constitution. See id. at n.3.
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Buie, supra at 335 (emphasis added).
In Taylor, supra, our Supreme Court explained:
Buie sets forth two levels of protective sweeps. The
two levels are defined thus: [A]s 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.
Pursuant to the first level of a protective sweep, without a
showing of even reasonable suspicion, police officers may make
cursory visual inspections of spaces immediately adjacent to the
arrest scene, which could conceal an assailant. The scope of the
second level permits a search for attackers further away from the
place of arrest, provided that the officer who conducted the sweep
can articulate specific facts to justify a reasonable fear for the
safety of himself and others.
Id. at 1267 (emphasis added). Thus, “the scope of a protective sweep
extends only to a visual inspection of those places in which a person might be
hiding and lasts no longer than is necessary to dispel the fear of danger.” Id.
at 1268 (citation omitted).
“The logic behind a protective sweep or security check is simple and
straightforward. Where the safety of the arresting officers can be jeopardized,
their safety outweighs the minimal intrusion a properly executed sweep may
have upon an individual’s privacy.” Commonwealth v. Crouse, 729 A.2d
588, 598 (Pa. Super. 1999), appeal denied, 747 A.2d 364 (Pa. 1999).
Protective sweeps envision a sweep for persons and “cannot be used as a
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pretext for an evidentiary search.” Id. However, if an officer discovers
contraband while conducting a proper protective sweep, he is not required to
ignore it and the Fourth Amendment does not require its suppression. See
Commonwealth v. Potts, 73 A.3d 1275, 1282 (Pa. Super. 2013); see also
Commonwealth v. Witman, 750 A.2d 327, 336 (Pa. Super. 2000) (stating
evidence observed in plain view during lawful and appropriate protective
sweep is admissible).
As noted supra, in order for the police to conduct a protective sweep
incident to arrest beyond the immediate vicinity of the arrest, i.e., a second
level sweep permitting a search for attackers further away from the place of
arrest, the police must be able to articulate specific facts that would cause a
reasonably prudent police officer to believe that there was a danger to the
officer’s safety on the premises. See Taylor, supra at 1267. In Buie, the
Supreme Court emphasized that the duration of the sweep must “last[] no
longer than is necessary to dispel the reasonable suspicion of danger and in
any event no longer than it takes to complete the arrest and depart the
premises.” Buie, supra at 335 (emphasis added).
In this case, at the time the officers conducted the second level sweep
beyond the immediate vicinity of the arrest, when police entered the master
bedroom, Hightower was outside the home in handcuffs and all likely
occupants of the residence were secured. Layer and the two children were on
the first floor and were not handcuffed because they did not present a safety
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concern. Although the police witnesses testified that they proceeded to the
second floor of the house to check for persons who may have posed a danger,
they failed to articulate sufficient facts to justify the second level search
beyond the areas immediately adjoining the arrest.
First, the record does not support an inference that someone potentially
hiding in the master bedroom presented a threat to the officers’ safety, given
that Hightower’s arrest was complete, he was outside the house and police
were free to depart the premises. Second, as the police officers recognized,
the Hightower residence had been under surveillance for five days preceding
his arrest on the fleeing/eluding charge and the only individuals who had been
seen entering or exiting the premises in addition to Hightower were Layer and
the two children. The more reasonable inference is that the officers entered
the master bedroom to search for the narcotics they believed were at the
premises based on information developed through confidential informants in
a separate investigation. Accordingly, we conclude that the officers’ actions
went beyond the scope of conducting a proper protective sweep incident to
Hightower’s arrest.
Additionally, even if we were to find that police were permitted to
conduct a sweep of the second floor for hidden persons, we would conclude
that the search of the dresser was outside the scope of a protective sweep.
As previously noted, Officer Fouad testified that he observed “cherry gelato,
foil bags, a box of sandwich baggies, loose marijuana” on the dresser and the
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“top drawer of the dresser was cracked open, and I could see inside the drawer
wads of cash in plain view.” (N.T. Trial, at 54). He further testified that he
obtained a search warrant based on these observations. However, the trial
court did not find Officer Fouad’s testimony as to the wads of cash visible in
the top drawer credible because the crime scene photographs depicted the
drawer was closed. (See id. at 61-62). Officer Fouad also acknowledged that
no one could hide behind the dresser because it was positioned against a wall,
nor could anyone fit within the dresser drawers. (See id. at 62). Under these
circumstances, we would conclude that a limited protective sweep of the
second floor for hidden persons would not have led to police observation of
tiny loose specks of suspected marijuana on top of a dresser.
With regard to the Commonwealth’s companion argument that the plain
view doctrine operates to prevent suppression, it also fails. “The plain view
doctrine provides that evidence in plain view of the police can be seized
without a warrant.” Commonwealth v. Luczki, 212 A.3d 530, 546 (Pa.
Super. 2019) (citation omitted). However, “inherent in the plain view doctrine
is the principle the seized object must not have been put in plain view as a
result of unlawful police conduct.” Heidelberg, supra at 504 (citation
omitted). Under the plain view doctrine, a warrantless seizure of an item is
only permissible when “(1) an officer views the object from a lawful vantage
point; (2) it is immediately apparent to him that the object is incriminating;
and (3) the officer has a lawful right of access to the object.” Id. (citation
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omitted). Here, since the extended search of Layer’s house was an unlawful
protective sweep, the officers did not observe the seized contraband from a
lawful vantage point nor have a lawful right of access to it. Thus, the plain
view doctrine is not applicable.
In sum, we conclude that the trial court did not abuse its discretion or
commit an error of law in granting Layer’s pretrial suppression motion and,
therefore, affirm its October 13, 2022 Suppression Order.8
Order affirmed.
Judge Bowes files a dissenting memorandum.
Judge Nichols files a concurring memorandum.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/8/2023
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8 The Commonwealth originally raised sub-claims regarding the suppression
of items seized pursuant to the search warrants for the residence and vehicle.
However, the Commonwealth and the trial court acknowledge that the issue
of the legality of the warrants is controlled by this Court’s disposition of the
arguments concerning the protective sweep and plain view doctrine. (See
Commonwealth Brief, at 4, 9, 20; Trial Court Op., 12/22/22, at 10). The
claims concerning the warrants are rendered moot by our disposition affirming
suppression.
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