Commonwealth v. Roland

MONTEMURO, Justice,

dissenting.

Because I believe the police had probable cause and exigent circumstances to justify their warrantless search, I dissent.

I agree with the Majority that searches and seizures of a home are presumptively unreasonable. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). However, it has long been recognized that warrantless searches and seizures will be upheld where the police had probable cause and were presented with exigent circumstances for the search. New Jersey v. TLO, 469 U.S. 325, 340, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985) (citing Almeidar-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973)); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990), aff'd, Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992). I believe that the police in the instant case had probable cause to enter the home, and exigent circumstances to conduct a warrantless search once inside.

Probable cause is a flexible common-sense standard. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1993); See also Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949) (“probable cause is a “practical non-technical standard”). It exists where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); See also Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969); Commonwealth v. Palm, 315 Pa.Super. 377, 462 A.2d 243 (1983).

In the instant case, officer Gehrmann responded to a call made by 19 year old Edward Maxwell. (R.R. at 5) When officer Gehrmann arrived, he found Maxwell injured and bleeding from the head. Id. Maxwell informed Gehrmann that he had been assaulted at a party at the Roland household on 826 Kewanna Avenue. Id. Maxwell further stated that underage drinking and marijuana smoking were occurring at the party and that he had participated in these activities. (R.R. at 6-7)

Whether an informant’s tip gives rise to probable cause is determined by a “totality of the circumstances approach” weighing the informant’s veracity, reliability and knowledge. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). In Gates, the Court held that an anonymous letter sent to the police was not sufficient to give the police probable cause to search the defendant’s car and home. Id. at 227, 103 S.Ct. at 2326. However, the court found, “[o]ur decisions applying the totality-of-the-circumstances analysis ... have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.” Id. at 241, 103 S.Ct. at 2334. Clearly, Maxwell’s tip did not provide the police with the requisite probable cause to suspect that underage drinking and drug use was occurring at the party.' The officer had no way of judging the veracity of his informant as he was a minor whom the officer had not dealt with previously. However, once officer Gehrmann knocked on the door of the Roland house and saw several minors sitting in proximity to beer cans, he had probable cause to believe that drug use and underage drinking was occurring on the premises as he had “personally verified every facet of the information given him by [the informer] ...” Id. at 243, 103 S.Ct. at 2334 (quoting Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959). Although nothing in officer Gehrmann’s view would conclusively demonstrate that drug use was taking place on the premises, he could conclude that the informant was correct about the underage drinking and was therefore correct about the drug use. See Gates, 462 U.S. at 244, 103 S.Ct. at 2335 (“[B]ecause an informant is right about some things he is more probably right about other facts”). Thus, Officer Gehrmann had facts within his knowledge, based on Maxwell’s tip and his own corroborating police work, giving him probable cause to believe that drug use and underage drinking were occurring on the premises.

Having established probable cause for crossing the threshold, I believe that the police officers had exigent circumstances to conduct a search of the home and secure evidence for Roland’s prosecution.

The realities and practicalities of law enforcement dictate that where exigent circumstances exist, the warrant requirement is excused. United States v. Velasquez, 626 F.2d 314 (3rd Cir.1980); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). The Majority quotes and then applies the seven factors set forth in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177, cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980) and in Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979), overruled, Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980). Using these factors, they conclude that exigent circumstances did not exist. In Williams we held, “[w]hile the numerous and varied street fact situations do not permit a comprehensive catalog of cases covered by [the term exigent circumstances], it may be useful to refer to a number of considerations that are material, and have pertinence in the case at bar.” Williams, 483 Pa. at 298, 396 A.2d at 1179 (quoting Dorman v. United States, 435 F.2d 385, 392-3 (D.C.Cir.1970). Thus, the factors set forth in Williams and Wagner were not intended to be a checklist or litmus test to be rigidly applied to every case. Commonwealth v. Williams, 411 Pa.Super. 586, 602 A.2d 350 (1992).

Instead, I believe more helpful are the cases holding that exigent circumstances exist where the need for prompt police action is imperative to prevent the destruction of evidence. “The possibility that evidence will be destroyed by defendants who have discovered government surveillance of their activities often has been recognized as a sufficient exigency to justify a warrantless entry.” United States v. Edwards, 602 F.2d 458, 468 (1st Cir.1979). See also United States v. Guidry, 534 F.2d 1220 (6th Cir.1976); United States v. Blake, 484 F.2d 50 (8th Cir.1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974); United States v. Rubin, 474 F.2d 262 (3rd Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Commonwealth v. Conn, 377 Pa.Super. 442, 547 A.2d 768 (1988), appeal denied, 521 Pa. 617, 557 A.2d 721 (1989).

I believe, as the Superior Court recognized, that the test the United States Court of Appeals formulated in United States v. Rubin and adopted by the courts of this Commonwealth in Commonwealth v. Conn, supra, is more helpful in resolving the instant case. In Rubin, the Court of Appeals found that a police officer’s belief that evidence might be destroyed rises to the level of exigent circumstances when, “[g]overnment agents ... have probable cause to believe contraband is present and, in addition, based on surrounding circumstances or the information at hand, they reasonably conclude that evidence will be destroyed or removed before they can secure a search warrant ...” Rubin, 474 F.2d at 268. The court found the following circumstances helpful to the analysis: (1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the reasonable belief that the contraband is about to be removed; (3) the possibility of danger to the police officers guarding the site of the contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail and; (5) the ready destructibility of the contraband. Rubin, 474 F.2d at 268-269.

In the instant situation, the police seized marijuana, marijuana seeds, drug paraphernalia in the form of a smoking pipe, a case of empty beer cans and twenty beer cans in various stages of fullness, as well as several minor guests to support Roland’s convictions. There is no question in this case that the defendant knew the police were “on his trail.” Officer Gehrmann clearly saw the defendant and the minors consuming alcohol. Roland was well aware of this when he greeted the police at his front door.

Furthermore, the officers could reasonably believe that the evidence would be destroyed or carried away while they attempted to obtain a warrant. In the case of the marijuana, marijuana seeds and the alcohol present in the beer cans, the evidence was “readily destructible.” In the case of the beer cans themselves and the drug paraphernalia, they were not “readily destructible” but were easily disposable. We have recognized not only the danger that evidence can be destroyed while officers are attempting to get a warrant, but also that evidence can be “secreted away” from the scene. See Holzer, 480 Pa. at 102, 389 A.2d at 106. There is simply no reason to believe that any of the physical evidence would be on the premises if the police returned to the Roland house with a warrant. The defendant had been notified of the police interest, and the police could reasonably believe that he would take steps to destroy evidence and “secret away” any evidence he could not destroy.

Also, there is no reason to believe that any of the minors on the premises would have remained until the police returned with a warrant. The record reflects that as Officer Gehrmann spoke to Mr. Roland at the front door, various minors attempted to exit the house through the rear roof. Short of laying siege to the Roland house, it is inconceivable that the police could prevent the minors from exiting the house surreptitiously in the dark. It is also doubtful whether the police could stop them in any event. As the suppression court noted, it would be more unreasonable and outrageous to detain a house full of people until a warrant arrived. See R.R. at 23. The Majority suggests that if the minors attempted to escape, the police could arrest them pursuant to 18 Pa.C.S.A. § 6308 (possession of beer by a minor) or 18 Pa.C.S.A. § 5505 (public intoxication). It is doubtful that the minors in question would attempt to flee the scene with incriminating evidence of their illegality so an arrest under § 6308 seems unlikely. As to the second contention, nothing in the record suggests that the minors were sufficiently intoxicated to support an arrest under § 5505.

Concededly, the officers would not be in any danger while guarding the Roland house while other officers went to obtain the warrant. However, the other prongs of the Rubin test are sufficiently satisfied. More important than satisfying any one test is the common-sense conclusion that there would have been little or no evidence remaining at the Roland house when the police returned with a warrant in hand.

The Majority also contends that the holding of Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) precludes the finding of exigent circumstances. In Welsh, the United States Supreme Court found that the gravity of the underlying offense was to be considered when determining whether an exigency exists. The Court held that the exigent circumstances exception should not be used when the underlying offense was a minor one. The Court, in Welsh, stressed that the offense at issue was a non-jailable traffic offense. The maximum penalty for this offense was a civil forfeiture proceeding with a maximum fine of $200¹ The Court held this to be a minor offense making the warrantless search unreasonable.

Nowhere in Welsh does the Court provide a definition of what constitutes a minor offense for the purposes of this analysis. The Court, in dictum, noted that several states have limited the exigent circumstances exception to those cases involving felonies. See State v. Guertin, 190 Conn. 440, 461 A.2d 963 (1983); People v. Strelow, 96 Mich.App. 182, 292 N.W.2d 517 (1980); People v. Sanders, 59 Ill.App.3d 6, 16 Ill.Dec. 437, 374 N.E.2d 1315 (1978) cited in Welsh, 466 U.S. at 752, 104 S.Ct. at 2098. Other states, the Court noted, allowed the exigent circumstance exception where the underlying offense was a misdemeanor. See State v. Penas, 200 Neb. 387, 263 N.W.2d 835 (1978); State v. Niedermeyer, 48 Or.App. 665, 617 P.2d 911 (1980) cited in Welsh, 466 U.S. at 752, 104 S.Ct. at 2098.

Similarly, the Majority’s opinion does not provide a framework to determine what is to be considered a minor offense for the exigent circumstances analysis. Their opinion suggests that all misdemeanors will be considered minor. I do not believe that the rationale behind the exigent circumstances exception or the Welsh opinion requires that such a line be drawn.

Ultimately, the exigent circumstances exception is a balancing of an individual’s right to be free from unreasonable intrusions against the needs of law enforcement in investigating a crime quickly, and preventing the disappearance of evidence necessary to convict criminals. United States v. Rubin; United States v. Hayes, 518 F.2d 675 (6th Cir.1975); Commonwealth v. Williams, 411 Pa.Super. 586, 602 A.2d 350 (1992); Commonwealth v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616 (1983). I see no reason why Welsh should require courts to pre-empt this balancing except in cases involving non-criminal, non-jailable offenses. Instead, I believe that Welsh’s admonition to examine the seriousness of the underlying offense should be an element to be considered in determining whether the search was reasonable.

In the instant case, the police had probable cause to believe the following had occurred at the Roland house: (1) a violent assault on Edward Maxwell; (2) drug possession and use; (3) furnishing alcohol to minors; and (4) underage drinking. None of the above-mentioned offenses are felonies; the first three are misdemeanors and the last is a summary offense. However, I believe it premature to deem these misdemeanors “minor” and end the analysis. These misdemeanors are serious in nature as they involve violent crime and/or the welfare of children. I think it best to proceed to the next step and weigh the privacy interest of the defendant, keeping in mind the nature of the offense to determine whether the warrant-less search was reasonable.

Here the defendant suffered a relatively minor privacy intrusion. The police walked up to the defendant’s home and knocked on his front door with the intention of asking him some questions. The police have the right to knock on the front door of a residence co-extensive with the right of anyone else, be it a neighbor, salesman or pollster. See United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir.1991); Davis v. United States, 327 F.2d 301, 305 (9th Cir.1964). When Mr. Roland opened his door he was exposing the illegal conduct to the world. The police saw no more than anyone knocking at his door would have seen. Had Mr. Roland wished to keep his illegal activity private he should have been more careful to keep it out of the plain view of anyone standing at his doorstep.²

Thus, after weighing the exigent need of the police to prevent the destruction of evidence and the serious nature of the misdemeanors against the diminished privacy interest of Roland, I would conclude the balance in favor of finding this search reasonable.

For the above-mentioned reasons, I dissent.

PAP AD ANOS, J., joins in this dissenting opinion.

1 . In fact, the violation at issue in Welsh was the petitioner’s second violation of the statute in five years subjecting him to potential imprisonment of up to a year. Thus, the petitioner was actually charged with a criminal misdemeanor. The Court minimized the criminal nature of the petitioner's conduct by finding that the police had probable cause at the time of the search to only believe that the petitioner was a first time offender subject to the non-jailable traffic offense. See Welsh, 466 U.S. at 746 n. 6, 104 S.Ct. at 2096 n. 6.

2 . One might argue that the police sweep through the house created a larger privacy invasion. However, the defendant challenges only the threshold intrusion into the house and not the scope' of the search beyond that threshold intrusion. See R.R. at 10.