Com. v. Brill, D.

J-A18019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD JOHN BRILL
Appellant No. 1956 MDA 2013
Appeal from the Judgment of Sentence October 3, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002696-2012
BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 15, 2015
Donald John Brill appeals from the judgment of sentence imposed by
the Court of Common Pleas of Lancaster County following his conviction for
possession with intent to manufacture or deliver,1 intentional possession of a
controlled substance by a person not registered,2 and one count of
possession of drug paraphernalia.3 After careful review, we affirm.
The underlying facts of the case are as follows. On February 10, 2012,
at 10:25 a.m., East Earl Township Police Officer Daniel Nipper responded to
an ambulance assist call at 1081 Weaverland Road. When he arrived on the
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1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
35 P.S. § 780-113(a)(2).
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scene he was met by Sandra Baumer, who explained that she called 9-1-1
because she was unable to contact her sister, Carol Brill (Carol), who lived at
the Weaverland Road address. She told Officer Nipper that Carol had a
recent medical issue that caused her to faint unexpectedly. Baumer also
told him that there was an unlocked window at the rear of the property.
Also present at the scene was Carol’s neighbor Eugene Nolt, who
Officer Nipper knew to be a first responder with the fire company. Because
Nolt is of smaller stature than Officer Nipper, Nolt climbed in through the
unlocked window and went to the front door, which he opened for Officer
Nipper. Upon entering, Office Nipper announced the presence of police and
emergency medical personnel. He received no response.
Office Nipper searched the kitchen, the dining room and a bedroom
later identified as Carol’s. He then moved on to a bedroom later identified
as Brill’s, where he saw rolling papers, a rolling machine and other assorted
paraphernalia, and a quart size Mason jar containing marijuana. He opened
a closet that had a chair in front of it, and found two glass jars on a shelf
containing what appeared to be marijuana. He then checked the bathroom
through which Nolt had entered. Having not found anyone on the first floor,
he proceeded to the second floor, where he again found no one.
When Officer Nipper returned to the first floor, he met Nolt, who told
him there was something in the basement he needed to see. Officer Nipper
went into the basement where he found three potted marijuana plants
surrounded by a makeshift curtain.
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Satisfied that no one was in the house, Officer Nipper confiscated the
marijuana and paraphernalia, and left the house, leaving behind his business
card. Carol called Officer Nipper around noon that day and came down to
the station to talk to him. After she told him that Brill grows marijuana in
the house, he asked if she would consent to a search of the house. She then
signed a voluntary search form.
During the search, Carol showed him bags of marijuana in the drawer
of a cupboard in the living room. In the bar area of the basement, she also
pointed out a key on a keychain made of a clear plastic box with what
appeared to be a marijuana cigarette inside it. Office Nipper left the house
with these items.
Brill later contacted Officer Nipper, and he agreed to have Officer
Nipper come back and use the key to search a locked area of the residence.
When Brill opened the locked room, Office Nipper saw equipment and
paraphernalia used to cultivate marijuana. Brill was subsequently charged
with possession with intent to deliver, possession of a controlled substance
and possession of drug paraphernalia.
The trial court held a suppression hearing on May 10, 2013, and by
opinion and order dated July 3, 2013, it held that all items seized from the
house were admissible except for the items Officer Nipper found in Brill’s
bedroom closet.
On October 3, 2013, following a stipulated bench trial, the court found
Brill guilty of the aforementioned offenses and imposed an aggregate
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sentence of two years’ probation, a $300.00 fine, costs and mandatory DNA
sampling.
Brill filed a timely appeal in which he raises the following issues for our
review:
1. Whether the lower court erred when it found the police had
objectively reasonable grounds to effectuate a warrantless
entry of [Brill’s] residence based on a perceived medical
emergency?
2. Whether the lower court erred when it found the search of
Brill’s residence did not unlawfully expand in nature and scope
beyond the initial warrantless entry’s medical emergency-
based necessity, specifically, when an officer searched [Brill’s]
basement after explicitly being informed that there was no
longer a basis to conclude a medical emergency existed?
Appellant’s Brief, at viii.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining 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 pf 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 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.
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Commonwealth v. Farnan, 55 A.3d 113, 115 (Pa. Super. 2012) (citation
omitted).
The basic principles underlying our decision in this matter have been
summarized by the Pennsylvania Supreme Court as follows:
Warrantless entries or searches are per se unreasonable under
our federal and state Constitutions, albeit subject to certain
delineated exceptions. One such exception exists when there is
both probable cause and exigent circumstances sufficient to
excuse obtaining a warrant. Commonwealth v. Wright, 961
A.2d 119, 137 (Pa. 2008). The U.S. Supreme Court has
recognized that the “Fourth Amendment does not bar police
officers from making warrantless entries and searches when they
reasonably believe that a person within is in need of immediate
aid.” Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57
L.Ed.2d 290 (1978). See also Commonwealth v. Miller, 724
A.2d 895, 900 (Pa. 1999) (limited number of circumstances will
excuse police from compliance with Fourth Amendment warrant
and probable cause requirements; one such circumstance occurs
when police reasonably believe that someone within residence is
in need of immediate aid); Commonwealth v. Norris, 446 A.2d
246, 248 (Pa. 1982) (warrantless entry into residence may be
permitted, inter alia, “when the officers may in good faith believe
that they or someone within are in peril of bodily harm.”);
accord Commonwealth v. Galvin, 985 A.2d 783, 795–96 (Pa.
2009).
Commonwealth v. Davido, 106 A.3d 611, 622 (Pa. 2014).
In Brigham City v. Stuart, 457 U.S. 398 (2006), the Supreme Court
held law enforcement officers “may enter a home without a warrant to
render emergency assistance to an injured occupant or to protect an
occupant from imminent injury.” Id. at 403. “Officers do not need ironclad
proof of a likely serious, life-threatening injury to invoke the emergency aid
exception.” Michigan v. Fisher, 588 U.S. 45, 49 (2009) (internal quotation
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omitted). The test is not what the officer “believed, but whether there was
an objectively reasonable basis for believing that medical assistance was
needed, or persons were in danger.” Id. (citations and quotation omitted).
It is error for a court “to replace that objective inquiry into appearances with
its hindsight determination that there was in fact no emergency.” Id.In Commonwealth v. Maxwell, 477 A.2d 1309 (Pa. 1984), citing
Mincey, supra and Norris, supra, our Supreme Court reiterated that in a
life-threatening emergency, it is proper for police to make a warrantless
search of a residence.
In Miller, supra, the trial court denied a defense motion to suppress
evidence from a search of a house that the police entered after receiving
information from a relative that the residents might require help. On appeal,
our Supreme Court affirmed, noting:
This was not a case in which the police created their own
exigency and acted upon it; rather the police acted in response
to the urging of Miller’s family and based upon a reasonable
belief that the Millers were inside and in need of assistance.
Hence, the trial court’s finding of exigent circumstances is
supported by the record.
Miller, 724 A.2d at 900.
In the instant matter, as in Miller, the search of the house came in
response to a report by a concerned family member who was unable to
contact a resident. Here, Baumer told police that she was unable to contact
her sister, whose car was at the residence. In addition, she expressed
concern that her sister had been suffering from fainting spells recently.
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Further, this was not a case where the police caused the exigency or took
advantage of a relative’s concerns to gain entry to a house for the purpose
of finding a suspect or evidence of a crime therein.
From the cases cited herein, we glean that where police officers acting
in good faith reasonably believe that an individual may be in need of medical
assistance, an exception to the warrant requirement exists. Such was the
case here, where Officer Nipper acted on information from Baumer that she
was unable to reach her sister Carol by phone, Carol’s car was parked in
front of the house but no one answered the door, and Carol had “a recent
medical issue with her fainting unexpectedly.” N.T. Suppression Hearing,
5/10/13, at 5. Based on an objective inquiry into appearances, rather than
hindsight, Officer Nipper acted in good faith on a reasonable belief that
someone in the house needed medical assistance. See Fisher, supra.
Accordingly, the trial court did not err by finding that the officer’s entry into
the home was permissible.
Having determined that the entry into the house was lawful, the trial
court concluded that almost all of the contraband that Officer Nipper seized
was proper under the plain view exception to the Fourth Amendment
warrant requirement.4
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4
The trial court determined that Officer Nipper improperly opened a two-foot
by two-foot closet in front of which a chair had been placed. Accordingly, it
suppressed the marijuana found inside the closet.
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We apply the following test to determine whether a search falls within
the plain view exception:
For the exception to be present, initially, the officer must not
have violated the Fourth Amendment in arriving at the place
from which the evidence could be plainly viewed. Moreover, two
additional conditions must be satisfied to justify the warrantless
seizure. First, the incriminating character of the item must be
immediately apparent. Also, the officer must have a lawful right
of access to the object itself.
Commonwealth v. Turner, 982 A.2d 90, 92 (Pa. Super. 2009) (quotations
and citations omitted).
As a preliminary matter, we have already determined that Officer
Nipper did not violate the Fourth Amendment when he entered the house.
We agree with the trial court that the incriminating nature of the marijuana
and paraphernalia were clear to the officer, who testified that he is familiar
with what marijuana looks life. N.T. Suppression Hearing, 5/10/13, at 5-6.
Officer Nipper testified that in an attempt to find Carol, he searched
the downstairs of the house (the kitchen, the dining room, Carol’s bedroom,
Brill’s bedroom and the bathroom). Because his presence in those rooms
was lawful, he properly seized items in plain view.
Officer Nipper then proceeded upstairs where additional bedrooms
were located. When he returned downstairs, Nolt told him there was
something he needed to see in the basement. As the trial court notes, “Nolt
never specified if he had found Mrs. Brill’s body.” Trial Court Opinion,
12/26/13, at 4. Officer Nipper went into the basement for a legitimate
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purpose, and it was reasonable for him to look behind the curtain where he
discovered the three marijuana plants.
The trial court did not err or abuse its discretion in holding that Officer
Nipper’s entry into the home without a warrant was appropriate under the
circumstances. Because Officer Nipper was legitimately in Brill’s house, the
seizure of contraband that was in plain view was permitted under Turner,
supra.Judgment of sentence affirmed.
Judge Musmanno joins the majority.
Judge Wecht files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2015
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