Com. v. Cook, M.

J-S58011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MANDY LEANE COOK,
Appellee No. 525 MDA 2015
Appeal from the Order Entered March 9, 2015
in the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0001490-2014
BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 24, 2015
The Commonwealth appeals from the order of March 9, 2015, which
granted the motion of Appellee, Mandy Leane Cook, to suppress
photographs taken of her home.1 After review, we affirm.
We take the underlying facts and procedural history in this matter
from the December 23, 2014 notes of testimony, our independent review of
the certified record, and the trial court’s March 9, 2015 opinion.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The Commonwealth may take an appeal of right from an order that does
not end the entire case if it certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d);
see also Commonwealth v. Torres, 764 A.2d 532, 536 n.2 (Pa. 2001).
The Commonwealth has included such a certification in this case.
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At the [suppression] hearing, [Pennsylvania State Police]
Trooper Jeffrey Ebeck testified he received a call from Patricia
Mlynek, a broker for Advantage One Property. Ms. Mlynek
advised Trooper Ebeck she had some concerns with the state of
the property located at 122 Smullton Road in Rebers[b]urg,
Pennsylvania, rented by [Appellee] and her family. Ms. Mlynek
represented to Trooper Ebeck she was able to give him
permission to enter the residence, as [Appellee] was “behind on
the rent and . . . being allowed to live at the residence out of . . .
kindness” on the part of Advantage One and the landlord,
although eviction proceedings had been started. Ms. Mlynek
advised Trooper Ebeck the back door of the residence would be
unlocked.
Trooper Ebeck went to the residence and entered through
the aforementioned rear door, which was unlocked. He took
photographs of the residence and its condition and spoke to
neighbors. [Appellee] was not at the residence when Trooper
Ebeck arrived and he testified it took him several months to
make contact with her. Ultimately, charges[2] were filed against
[Appellee] on August 20, 2014, approximately six months after
Trooper Ebeck’s entry into the home.
(Trial Court Opinion, 3/09/15, at 1-2).
On October 17, 2014, Appellee filed a motion to suppress. The trial
court held a hearing on Appellee’s motion on December 23, 2014. On March
9, 2015, the trial court issued an order granting the motion. The instant,
timely appeal followed. On March 27, 2015, the trial court ordered the
Commonwealth to file a concise statement of errors complained of on
appeal. See Pa.R.A.P. 1925(b). The Commonwealth filed its timely Rule
1925(b) statement on April 17, 2015. On April 23, 2015, the trial court
____________________________________________
2
Appellee was charged with eight counts of endangering the welfare of
children, 18 Pa.C.S.A. § 4304(a)(1), and three counts of cruelty to animals,
18 Pa.C.S.A. § 5511(c)(1).
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issued an opinion, adopting its March 9, 2015 decision. See Pa.R.A.P.
1925(a).
On appeal, the Commonwealth raises the following question for our
review:
1. Did the [trial] court err as a matter of law in granting
[Appellee’s] [m]otion to [s]uppress when the search was
constitutionally valid pursuant to the doctrine of apparent
authority[?]
(Commonwealth’s Brief, at 4).
The Commonwealth challenges the trial court’s grant of Appellee’s
motion to suppress, arguing that the trial court erred in suppressing the
photographs taken by Trooper Ebeck. (See id. at 15-22). When the
Commonwealth appeals from a suppression order, this Court follows a
clearly defined scope and standard of review: we consider only the evidence
from the defendant’s witnesses together with the evidence of the
prosecution that, when read in the context of the entire record, remains
uncontradicted. See Commonwealth v. Henry, 943 A.2d 967, 969 (Pa.
Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008). This Court must
first determine whether the record supports the factual findings of the
suppression court, and then determine the reasonableness of the inferences
and legal conclusions drawn from those findings. See id. Here, because our
review of the certified record supports the trial court’s factual findings and
because the inferences and legal conclusions that the trial court drew are
both reasonable and legally correct, we affirm.
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The Fourth Amendment to the United States Constitution and Article 1,
§ 8 of the Pennsylvania Constitution require that searches be conducted
pursuant to a warrant issued by a neutral and detached magistrate. A
warrantless search or seizure is per se unreasonable unless it falls within a
specifically enumerated exception. See Commonwealth v. Lee, 972 A.2d
1, 3 (Pa. Super. 2009). “A search warrant is not required, however, where a
person with the proper authority unequivocally and specifically consents to
the search.” Commonwealth v. Reid, 811 A.2d 530, 544 (Pa. 2002), cert.
denied, 540 U.S. 850 (2003) (citations and footnote omitted).
The Commonwealth argues that the apparent authority exception to
the warrant requirement justifies the search in the instant matter. (See
Commonwealth’s Brief, at 8). We disagree.
A third party with apparent authority over the area to be
searched may provide police with consent to search. Third party
consent is valid when police reasonably believe a third party has
authority to consent. Specifically, the apparent authority
exception turns on whether the facts available to police at the
moment would lead a person of reasonable caution to believe
the consenting third party had authority over the premises. If
the person asserting authority to consent did not have such
authority, that mistake is constitutionally excusable if police
reasonably believed the consenter had such authority and police
acted on facts leading sensibly to their conclusions of probability.
Commonwealth v. Strader, 931 A.2d 630, 634 (Pa. 2007), cert. denied,
552 U.S. 1234 (2008) (citations and quotation marks omitted). This Court
has discussed the standard to be applied when determining whether a police
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officer reasonably believed that a person possessed apparent authority to
consent.
. . . [W]e are not allowing carte blanche consent entries into
residences with the police officer being able to ratify his entry at
a later date suppression hearing by merely stating that he was
mistaken as to the actual authority of the consenting party. We
hold that the police officer’s reasonable mistake must be judged
from an objective standard based on the totality of the
circumstances. Although the police officer’s state of mind is one
factor to be considered in determining the reasonability of the
mistake, it is not the only factor. Moreover, the police officer’s
mistake must be reasonable. In ambiguous situations, those
situations which would cause a reasonable person to question
the consenting party’s actual authority or if the consenting
party’s assertions of authority appear unreasonable, a police
officer should make further inquiries to determine the status of
the consenting party. Reliance on a third party’s bald assertion
in such situations could subject any search to the remedy of the
exclusionary rule.
Commonwealth v. Blair, 575 A.2d 593, 598 (Pa. Super. 1990), appeal
denied, 585 A.2d 466 (Pa. 1991) (citation and footnote omitted).
In the instant matter, the Commonwealth does not argue that Ms.
Mlynek had actual authority to consent to the search. (See
Commonwealth’s Brief, at 15-17). The Commonwealth also does not claim
that landlords have the actual authority to consent to a search of a tenant’s
residence. (See id. at 17); see also Commonwealth v. Davis, 743 A.2d
946, 951 (Pa. Super. 1999). Lastly, the Commonwealth concedes that
Trooper Ebeck knew that a landlord could not consent to a search of a
tenant’s residence. (See Commonwealth’s Brief, at 17; N.T. Suppression
Hearing, 12/23/14, at 15).
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Instead, the Commonwealth relies upon the Pennsylvania Supreme
Court’s plurality decision in Commonwealth v. Hughes, 836 A.2d 893 (Pa.
2003) and this Court’s decision in Commonwealth v. Basking, 970 A.2d
1181 (Pa. Super. 2009), appeal denied, 986 A.2d 148 (Pa. 2009). The
Commonwealth argues that these cases support its position that Trooper
Ebeck’s conclusion that Ms. Mlynek had apparent authority to consent to the
search was reasonable. (See Commonwealth’s Brief, at 21-22). We
disagree.
In Hughes, a parole officer and a police officer observed the
defendant standing outside a bar and wanted to question him about possible
parole violations. See Hughes, supra at 896. However, they lost sight of
the defendant and drove to his residence. See id. When the officers
arrived, there was a group of teenage girls standing on the porch. See id.
They asked if the defendant was home and the girls replied in the negative;
the officers then asked the girls if they could go into the house to look for
the defendant and the girls agreed. See id. at 896-97. Two of the girls
opened the door of the residence and followed the officers inside; while
searching the residence, they observed marijuana in plain view. See id. at
897. Our Supreme Court held that the girls had apparent authority to
consent to the search. See id. at 904.
However, our Supreme Court based this holding on factors that are not
present in the instant matter. Hughes placed great emphasis on the fact
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that, as a parolee, the defendant had a diminished expectation of privacy.
See id. at 899 (“The parole status of Appellant is significant because a
parolee has a diminished expectation of privacy and the Fourth Amendment
protections of a parolee are more limited than the protections afforded the
average citizen.”) (citations omitted). Moreover, given the opinion’s
concluding paragraph, it is questionable whether Hughes even applies in a
case that does not involve parolees or individuals on probation. See id. at
904 (“Nevertheless, we need not reach the question of whether the
‘apparent authority exception’ should be applied in situations involving the
average citizen because Appellant is a parolee and, consequently, he has a
diminished expectation of privacy.”) (citation omitted).
Further, in Hughes, the plurality emphasized the specific factual
circumstances in that case, namely that the girls were present at the home
and they were the ones who let the officers into the home, in finding that
the officers reasonably believed the girls had apparent authority to consent
to the search. See id. at 901. The opinion, described its reasoning thusly:
In this case, the officers approached the approved parole
residence of Appellant. Once they arrived, they noticed three
teenage girls standing on the porch. They inquired whether
Appellant was home and the girls responded that he was not.
When Officer Vines asked the girls whether he and Officer Aldrich
could enter the home and look for Appellant, they responded,
“no problem,” and opened the door for them. The girls
voluntarily gave the officers consent to enter the home; they did
not hesitate in giving the officers their consent—they even
opened the door to the residence for the officers. Additionally,
the girls followed the officers into the house. The actions of the
girls provided the officers with the reasonable belief that the girls
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possessed common authority over the premises permitting them
to provide valid consent to enter the residence.
Id. (emphasis in original) (record citation omitted).
Likewise, Basking is factually distinct from the instant matter. In
Basking, the police went to the home of a defendant, who was already in
custody, to search for a weapon used in an assault. See Basking, supra at
1185. The homeowner was the adult defendant’s mother and consented to
the search of the residence. See id. She let the police into the home,
accompanied them on a search of the first two floors, and volunteered that
any contraband would likely be found on the third floor where defendant
resided. See id. She then escorted the police to the third floor and told the
police to remove any contraband. See id. However, at the suppression
hearing, the mother admitted that she had not told police that she rented
the third floor to defendant; she and defendant had agreed that no one in
the house could access the third floor; and she had not been up to the third
floor in years. See id. at 1185-86. In holding that the police reasonably
believed that the mother had apparent authority to consent to the search,
we focused on a combination of factors, namely the close familial
relationship between the parties, the mother’s ownership of the property,
and her actions and assistance to the police during the search. See id. at
1191.
The factors emphasized in Hughes and Basking are simply not
present in the instant matter. Appellee is not on parole and Ms. Mlynek is
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not a close relative who owns the home and resides there. Ms. Mlynek was
not present at the residence during the search and there is no evidence of
record that she physically gave Trooper Ebeck access to the home.3 In both
Hughes and Basking, the plurality and this Court emphasized the presence
at the scene of the individuals who consented to the search and their actions
in physically giving the police access to the residence and accompanying
them into the residence. See Hughes, supra at 901; Basking, supra at
1191; see also Strader, supra at 635 (finding officers reasonably believed
occupant of apartment had apparent authority to consent to search where
occupant answered door, spoke with police, stated he had authority to
control who entered apartment, and agreed to let police enter); Blair,
supra at 598-99 (holding police reasonably believed woman who opened
door to defendant’s home had apparent authority to consent to entry where
she stated that defendant was present, officers did not seek entry to home
but rather asked to speak with defendant, and in response woman “ushered”
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3
While the Commonwealth argues that Ms. Mlynek left the door unlocked for
Trooper Ebeck, the certified record does not support this statement. (See
Commonwealth’s Brief, at 19). At the suppression hearing, Trooper Ebeck
testified that Ms. Mlynek told him on the telephone that the back door was
unlocked. (See N.T. Suppression Hearing, at 10). Ms. Mlynek did not make
any statements with respect to the door at the hearing. (See id. at 17-22).
Thus, it is impossible to tell from the record whether Ms. Mlynek left the
door unlocked for Trooper Ebeck or Appellee generally did not lock the back
door.
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them into home where defendant was in plain sight). Thus, neither Hughes
nor Basking provide legal support for the Commonwealth’s position.
We next turn to the question of whether the facts in the instant matter
support a conclusion that Trooper Ebeck’s belief that Ms. Mlynek had
apparent authority to consent to the search was reasonable under the
standards enunciated in Strader and Blair. See Strader, supra at 634;
Blair, supra at 598. Here, the Commonwealth lists fourteen different
factors that it believes contributed to the reasonableness of Trooper Ebeck’s
belief that Ms. Mlynek had apparent authority to consent to the search of the
residence. (See Commonwealth’s Brief, at 18-19). These factors are:
(1) a broker for the rental residence, Patricia Mlynek, reported
concerns about the status of the property; (2) the condition of
the property was at issue; (3) the welfare of animals living inside
it were at issue; (4) [Children and Youth Services] had been to
the residence on multiple occasions within the past eight (8)
days to check on the welfare of the children; (5) [Children and
Youth Services] was accompanied by uniformed law enforcement
officers during these visits; (6) [Appellee] was behind on rent at
the time of the search; (7) eviction proceedings had been
initiated; (8) [Appellee] was only being allowed to stay there out
of charity on the part of the rental agent, Ms. Mlynek—not the
landlord; (9) [Appellee] was not home at the time Ms. Mlynek
went to visit the property; (10) [Appellee] was not home at the
time of [Trooper] Ebeck’s search; (11) Ms. Mlynek specifically
stated she was the individual who had the authority to make
decisions regarding the residence; (12) Ms. Mlynek told
[Trooper] Ebeck that [Appellee] no longer had a right to be there
(thus Trp. Ebeck believed the issue of consent could not be
granted by [Appellee]); (13) Ms. Mlynek told [Trooper] Ebeck
you have permission to enter the home; and (14) Ms. Mlynek
provided [Trooper] Ebeck with the sole means to gain entry to
the residence; she left the back door unlocked—further
evidencing her authority and control over the residence.
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(Comonwealth’s Brief, at 18-19) (quotation marks and record citations
omitted). We find this list to be unpersuasive and many of the factual
averments therein unsupported by the testimony at the suppression
hearing. See In re L.J., 79 A.3d 1073, 1087 (Pa. 2013) (reviewing court
can look only to record developed at suppression hearing in determining
propriety of suppression court’s decision).
Initially, we note that the reasonableness of these factors must be
balanced against Trooper Ebeck’s knowledge that a landlord could not
consent to the search of a tenant’s residence. (See Commonwealth’s Brief,
at 17; N.T. Suppression Hearing, at 15). Further, the record does not
support the Commonwealth’s assertions with respect to factors three
through five,4 nine,5 twelve,6 and fourteen.7 The Commonwealth fails to
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4
There is no evidence that Trooper Ebeck had any detailed knowledge of the
police, Children and Youth Services, and animal welfare involvement in the
case. Ms. Mlynek did not testify that she informed Trooper Ebeck about
these issues. (See N.T. Suppression Hearing, at 17-22). Trooper Ebeck
simply testified that he was generally aware of concerns about animals and
that there had been police and Children and Youth Services involvement, not
that he was aware of the specific timetable. (See id. at 9).
5
There was no testimony at the suppression hearing regarding Ms. Mlynek’s
visit to the home. (See id. at 9-22).
6
Ms. Mlynek did not testify that she told Trooper Ebeck that Appellee no
longer had the right to be in the residence. (See id. at 17-22). Further,
Trooper Ebeck did not testify that Ms. Mlynek directly stated that Appellee
had no right to be at the residence but that it was “construed;” he never
testified that he believed that Appellee could not consent to a search of the
residence. (Id. at 15).
(Footnote Continued Next Page)
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explain how factors one and two contributed to the reasonableness analysis
given Trooper Ebeck’s awareness that a landlord could not give consent to
search. We also do not find the fact that Appellee was not home at the time
of the search persuasive, given there was simply no testimony at the
hearing that Trooper Ebeck believed, or that Ms. Mlynek told him, that
Appellee abandoned the residence (See N.T. Suppression Hearing, at 9-22).
Further, Trooper Ebeck testified that he did not attempt to contact Appellee
prior to searching the residence. (See id. at 13-14).
The remaining factors concern the alleged eviction proceedings and
Ms. Mlynek’s statements to Trooper Ebeck regarding them, telling him that
she had authority to consent to search, and giving him express permission
to search the home. The certified record supports the Commonwealth’s
contentions that Ms. Mlynek made these statements and that Trooper Ebeck
relied upon them in making his decision that she had apparent authority to
give him permission to search the residence.8 (See id. at 10-12, 14-15, 17-
_______________________
(Footnote Continued)
7
See footnote 3, supra.
8
While Appellee does not question that Trooper Ebeck relied upon these
statements in making his decision, the evidence of whether there were
pending eviction proceedings is in dispute. Appellee testified that there were
no evictions proceedings. (See id. at 7). Ms. Mlynek did testify that
Appellee was behind in rent and that there were ongoing eviction
proceedings, although her testimony about what stage the proceedings were
at was equivocal. (See id. at 19-20). The Commonwealth did not offer any
documentary proof in support of the claim. Because the Commonwealth did
(Footnote Continued Next Page)
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20). However, we do not find Trooper Ebeck’s reliance on these statements
to be reasonable.
Trooper Ebeck knew that a landlord could not give consent to search,
thus it was not reasonable for him to rely on a statement from someone in a
position equivalent to a landlord that she had that authority. Further,
Trooper Ebeck testified that he “took [Ms. Mlynek] at her word” with respect
to the existence of eviction proceedings and that this meant that Appellee
had no right to be on the property. (Id. at 15-17). He did not attempt to
verify that this actually was true and did not attempt to substantiate his
apparent belief that the pendency of eviction proceedings gave the landlord
the authority to consent to a search. (See id.). We find Trooper Ebeck’s
conduct in this matter to be remarkably similar to the police conduct that
this Court deplored in Davis.9 We stated:
. . . the United States Supreme Court has condemned a
warrantless search where the police had abundant opportunity to
obtain a warrant and there were no exigencies requiring
immediate entry into the premises. Presently, there was no
reason to justify the warrantless search of appellant’s
apartment. The officers simply should have secured the
_______________________
(Footnote Continued)
not prevail at the hearing, we cannot accept its claim that there were
ongoing eviction proceedings, only that Trooper Ebeck believed that there
were. See Henry, supra at 969.
9
While the issue in Davis was whether a landlord had actual authority under
the common authority doctrine to consent to a search of a tenant’s residence
rather than apparent authority, its reasoning is both pertinent and
persuasive. See Davis, supra at 951-52.
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premises and obtained a warrant based upon [the apartment
manager’s] observations.
* * *
The present case demonstrates the problems of the police
proceeding into a premises without a warrant. The evidence
which the police seized as a result of [the apartment manager’s]
consent to enter the apartment could have easily been seized
legally via the execution of a valid warrant based upon the
information provided by [him]. Presently, the police simply
should have secured the premises without entering it and waited
for the issuance of a warrant based upon the apartment
manager’s observations. Rather, the officers chose to enter the
apartment illegally and view the contraband before proceeding to
obtain a search warrant. To permit a warrantless search in this
situation, we believe, emasculates the protections afforded to
appellant and all citizens by the United States and Pennsylvania
Constitutions.
Davis, supra at 952-53 (citations omitted).
Here, despite the Commonwealth’s implications to the contrary (see
Commonwealth’s Brief, at 17-19), there were no exigent circumstances.
Trooper Ebeck knew a landlord could not consent to the search. Despite this
he took Ms. Mlynek “at her word” that, in fact, she had the authority to
consent to the search without making any attempt whatsoever to verify
either the factual or legal truth of her averments. This is exactly the type of
ambiguous situation where, in Blair, we held that the police officer should
make further inquiries into the circumstances and not rely on the third
party’s “bald assertion[s].” Blair, supra at 598. Thus, the
Commonwealth’s claim that the trial court should have denied the motion to
suppress lacks merit. See Strader, supra at 634; Blair, supra at 598.
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Accordingly, for the reasons discussed above, we affirm the order of
March 9, 2015 granting Appellee’s motion to suppress and remand the
matter to the trial court.
Order affirmed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2015
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