Com. v. Hightower, D. ( 2023 )

J-S21044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOMINIQUE TASHAWN-TYRELL :
HIGHTOWER :
: No. 1490 MDA 2022
Appellant
Appeal from the Suppression Order Entered October 13, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005926-2021
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
CONCURRING MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 08, 2023
I agree with the Majority, except with respect to the conclusion
concerning the protective sweep of the second floor. See Majority Mem. at
13 (stating that the police “failed to articulate sufficient facts to justify the
second level search beyond the areas immediately adjoining the arrest” on
the first floor).
In its opinion, the trial court recognized that the protective sweep
permitted the police officers to look for a person or persons on the second
floor of the house. See Rule 1925(a) Op., 12/22/22, at 8. However, the trial
court concluded that the officers exceeded the permissible scope of the sweep,
which authorized a search for a person who could pose a danger to the officers,
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* Retired Senior Judge assigned to the Superior Court.
J-S21044-23
and instead the officers unreasonably discerned specks of suspected
marijuana “amongst a variety of other items” sitting on top of a dresser. Id.
at 9. I agree with the trial court’s conclusion.
In my view, police had sufficient basis to conduct a protective sweep of
the second floor including places such as bathrooms, closets, and spaces
where a person could hide based on the movement of the blinds at the front
window on the second floor observed by Officer Adam Nothstein.1 See Buie
v. Maryland, 494 U.S. 325, 335 (1990); Commonwealth v. Taylor, 771
A.2d 1261, 1267 (Pa. 2001). However, I agree that the search of the dresser
was outside the scope of a protective sweep.
The record reflects that Officer Pete Fouad stated as follows:
During the service of the [arrest] warrant, I observed loose
marijuana on a dresser along with “Lemon Cherry Gelato”
resealable bags, and a box of clear sandwich baggies. The top
drawer of the dresser was slightly opened, and it contained wads
of cash. All items were in plain view. Based on the above
information, I obtained a search warrant for the residence.
Complaint (Affidavit of Prob. Cause), 11/3/21. Further, Officer Fouad testified
that he saw wads of cash in the open drawer. See N.T., 4/8/22, at 54.
However, the trial court concluded that Officer Fouad’s testimony concerning
the open drawer was not credible, as crime scene photos revealed that the
drawer was closed. See Trial Ct. Op., 10/13/22, at 4-5, 9. Because the
search warrant was based, in part, on the “wads of cash” Officer Fouad
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1 See N.T., 4/8/22, at 40.
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J-S21044-23
allegedly saw, and because the trial court did not credit this testimony, the
only remaining information supporting the search warrant were “specks” of
suspected marijuana allegedly observed during the protective sweep. See id.
at 8.
Protective sweeps are limited, and they must be swift and target areas
where a person could reasonably be expected to hide. Commonwealth
v. Crouse, 729 A. 2d 588, 598 (Pa. Super. 1999) (emphasis added). Further,
a protective sweep “must be supported by articulable facts and inferences
giving rise to reasonable suspicion that the area to be swept harbors an
individual posing a danger to the police.” Id. The trial court noted that Officer
Fouad admitted that a person could not fit behind the dresser or in the dresser
drawers. See Rule 1925(a) Op., 12/22/22, at 9. On this record, I agree with
the trial court that a search for persons hiding on the second floor would not
have led a reasonably prudent officer to observe loose specks of suspected
marijuana on top of a dresser. See Trial Ct. Op., 10/13/22, at 8. Therefore,
although I conclude that police were permitted to conduct a protective sweep
of the second floor for hidden persons due to the movement of the blinds,
because the trial court found Officer Fouad’s testimony not credible concerning
the open dresser drawer, I agree that there was insufficient cause to search
the interior of the dresser based on the observation of small specks of
marijuana on top of the dresser during the sweep. For these reasons, I agree
with the Majority that suppression is warranted, and I concur in the result.
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