Commonwealth v. Richter

JOHNSON, J.,

Dissenting.

¶ 1 I respectfully dissent. The Majority concludes that the suppression court erred in granting Karen Lee Richter’s motion to suppress drug evidence. The Majority concludes that exigent circumstances existed that justified the officers’ warrantless intrusion into Richter’s home. Following review of the circumstances at the moment of the intrusion, and applying prevailing case law on the matter, I conclude that the officers failed to demonstrate the exigency of the situation which would justify their entry into Richter’s residence. Accordingly, I conclude that the trial court properly suppressed the drug evidence obtained as a result of the illegal intrusion.

¶ 2 On May 19, 2000, at approximately 9:30 p.m., Officers Forbes and Thomas, and Sergeant J.R. Landis of the Buckingham Township Police Department were on patrol when dispatch issued a message that a 911 call had been placed. The caller indicated that a couple was involved in a domestic dispute and a female was holding the male resident at gunpoint. The officers arrived to find the neighborhood quiet. Without knocking, Sergeant Landis opened the door and entered. Upon entry, the officers found Arthur Nicholas Gosin standing in the kitchen. Sergeant Landis ordered Gosin to stay where was, while Officers Forbes and Thomas proceeded into the residence. Officers Forbes and Thomas then discovered Richter in the bedroom. Richter indicated that Gosin had assaulted her. As Sergeant Landis re-approached Gosin in the kitchen, he saw a marijuana roach lying on a coffee table. The officers then arrested Gosin for the assault and gave him Miranda warnings. Thereafter, Sergeant Landis obtained Go-sin’s consent to search the premises. As a result of his search, Sergeant Landis found drug paraphernalia and a bag of marijuana. The officers then arrested Richter.

¶ 3 The Commonwealth charged Richter with possession of a controlled substance and drug paraphernalia. In her pre-trial motion, Richter sought the suppression of the drug evidence on the grounds that the officers did not have a warrant, probable cause, consent or exigent circumstances permitting the entrance into the residence. Because Gosin also filed a pre-trial motion seeking the suppression of evidence, the parties agreed to permit the court to use the notes of testimony produced during Gosin’s pre-trial hearing to decide the merits of Richter’s motion. The court granted Richter’s motion on the basis that the police violated the “knock and announce” rule and because exigent circumstance did not exist to justify their intrusion. The Commonwealth subsequently filed separate appeals from the court’s orders granting both Gosin’s and Richter’s motion to suppress the drug evidence. On June 27, 2001, a panel from this Court reviewed the Commonwealth’s appeal regarding the trial court’s order granting Gosin’s motion. The Majority rejected the Commonwealth’s assertion that exigent circumstances existed justifying the intrusion. See Commonwealth v. Gosin, 779 A.2d 1217 (Pa.Super.2001) (unpublished memorandum). The Majority on this appeal concludes that the trial court erred in failing to find exigent circumstances.

¶ 4 The Commonwealth presents the following issue for this Court’s consideration:

Did the trial court err in granting [Richter’s] motion to suppress physical evidence where the warrantless, unannounced police entry into [Richter’s] residence was justified by the existence of exigent circumstances?

Brief for Appellant at 3.

¶ 5 While I observe that the Majority attempts to dispose of a question of whether the officers violated the “knock and announce” rule, this question is immaterial to the disposition of the issue as presented by the Commonwealth in its Statement of the Question Presented. Therefore, I shall limit my discussion to whether exigent circumstances existed to justify the officers’ entrance into Richter’s home.

¶ 6 In addressing an appeal from an order granting suppression of evidence, our scope of review is limited to an analysis of the suppression court’s findings of fact and conclusions of law. See Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117, 1118 (1998). In reviewing the findings of a suppression court where the Commonwealth is appealing, this Court must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. See Commonwealth v. Chase, 394 Pa.Super. 168, 575 A.2d 574, 575 (1990). The suppression court’s findings of fact bind an appellate court if the record supports those findings. See Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 881 (1998). “The suppression court’s conclusions of law, however, are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.” Id. As a result, this Court may reverse only if the legal conclusions drawn from the factual finding are erroneous. See Commonwealth v. Stewart, 740 A.2d 712, 715 (Pa.Super.1999). Moreover, this Court “will affirm the decision of the suppression court if it can be sustained for any reason whatsoever, even if the court offered an erroneous reason to support its action.” Commonwealth v. Govens, 429 Pa.Super. 464, 632 A.2d 1316, 1320 (1993).

¶ 7 The Commonwealth contends that exigent circumstances existed at the time of the intrusion that justified the officers’ warrantless entry. Brief for Appellant at 9. The Commonwealth argues that a report of a domestic disturbance involving a gun necessitated the officers’ entry into Richter’s home. Brief for Appellant at 11. Moreover, the Commonwealth argues that the subsequent search of Richter’s home was the result of a properly obtained consent. Brief for Appellant at 12.

¶ 8 The Fourth Amendment protects individuals from unreasonable governmental intrusions into their legitimate expectation of privacy. See Commonwealth v. Gutierrez, 750 A.2d 906, 909 (Pa.Super.2000). The expectation of privacy protected under the Fourth Amendment has been held to be greatest in one’s home. See id. Indeed, the United States Supreme Court has long recognized that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. See id. (quoting Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Furthermore, a war-rantless search of a residence is per se unreasonable unless justified by a specific exception to the warrant requirement. See id.

¶ 9 In reviewing the exigent circumstances exception to the warrant requirement, this Court has recognized that “some situations present a compelling need for instant arrest, and that delay to seek a warrant will endanger life, limb, or overriding law enforcement interests. In these eases, our strong preference for use of a warrant must give way to an urgent need for immediate action.” Govens, 632 A.2d at 1324. However, “[a]ll decisions made pursuant to the exigent circumstances exception [to the warrant requirement] must be made cautiously, for it is an exception which by its nature can very easily swallow the rule unless applied in only restricted circumstances.” Id. (quoting Commonwealth v. Conn, 377 Pa.Super. 442, 547 A.2d 768, 770 (1988)).

¶ 10 “Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” Commonwealth v. Santiago, 736 A.2d 624, 631 (Pa.Super.1999), appeal denied, 561 Pa. 674, 749 A.2d 470 (2000). In determining whether exigent circumstances exist, a number of factors are to be considered. See Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269, 270 (1994). Among the factors to be considered are: (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is-strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. See id. at 270-71'. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified. See id. at 271. Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling. See id. “Nevertheless, ‘police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.’ ” Id. (quoting Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)).

¶ 11 At the outset, I would concede that at the time the officers received the dispatched call, the gravity of the offense reported, ostensibly domestic abuse at gunpoint, was severe and that the anonymous call was sufficient to provide a reasonable belief that someone had a gun. The court found, however, that the officers did not encounter any disturbance emanating from Richter’s residence prior to entering. Thus, the only information the officers had regarding the circumstances within Richter’s home, contemporaneous to the intrusion, was an anonymous tip that a woman was holding a man at gunpoint.

¶ 12 This Court has previously held that an anonymous tip, standing alone, is insufficient to support a finding of probable cause where police officers attempt to obtain a search warrant. See Commonwealth v. Rosario, 320 Pa.Super. 215, 467 A.2d 5, 9 (1983). Where the intrusion is the warrantless entry into the home, a clear showing of probable cause must be made. See Roland, 637 A.2d at 270. Thus, absent any information, corroborative or independent, which would bolster the veracity of the tip, an anonymous tip is not sufficient to provide a clear showing of probable cause. Consequently, because the police failed to corroborate the information provided in the 911 call with anything they had observed, I would conclude that they failed to make a clear showing of probable cause.

¶ 13 Similarly, the Commonwealth did not adduce any testimony that the officers, upon their arrival, saw anyone inside of Richter’s home. Again, the only information at the officers’ disposal was the tip provided in the 911 call. When balanced against the absence of activity upon their arrival, I would conclude further that there was no strong reason to believe that anyone was at Richter’s residence when the police opened the door.

¶ 14 The fifth factor (whether there is a likelihood that the suspect will escape if not swiftly apprehended) presumes the presence of an identifiable suspect known to police prior to entry. Logically, this is the case because one is incapable of discerning the likelihood of a suspect’s escape when it is uncertain that a suspect capable of escape exists. At the moment the officers crossed the threshold of Richter’s home, they did not have a strong reason to believe that a suspect was in the house. Thus, it would be untenable for the officers to assess the flight risk of an, as yet unknown, suspect. Consequently, this factor does not enter into the present matter.

¶ 15 While I concede that the testimony demonstrates that the entry was peaceable, it occurred at approximately 9:20 p.m. Our Supreme Court has expressed repeatedly its concern regarding the reasonableness of nighttime searches. See Roland, 637 A.2d at 271; Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177, 1180 (1978). See also Jones v. U.S., 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958) (concluding “it is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home”). Thus, I conclude that the late hour of the officers’ entry diminishes the significance that their entrance was made peaceably.

¶ 16 The Majority’s position would permit officers to enter private residences with no more than an anonymous tip of someone wielding a weapon. Such a position would certainly allow the exception “to swallow the rule.” Conn, 547 A.2d at 770. Viewing the evidence with the purpose and limitations of the exigent circumstance exception in mind, I conclude that the Commonwealth failed to demonstrate a compelling need for instant arrest thereby justifying the intrusion into Richter’s home. See Govens, 632 A.2d at 1324.

¶ 17 Because the plain view exception to the warrant requirement applies only when the police observe evidence from a place in which they are entitled to be, see Commonwealth v. Gutierrez, 750 A.2d 906, 910 (Pa.Super.2000), and the officers in this case were not, in my opinion, so entitled, the drug evidence discovered on the kitchen table should have been suppressed. Likewise, Gosin’s consent “will not justify the otherwise illegal search unless the Commonwealth can demonstrate that [his] consent was an independent act of free will and not the product of the illegal detention.” Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903, 909 (2000) (quoting Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). However, because of the temporal proximity between the detention and the consent for the search and the lack of any intervening circumstances, which would demonstrate that the consent was an act of free will, it is impossible for the Commonwealth to demonstrate that Gosin’s consent was not the product of the detention. See id. I would therefore conclude that because Go-sin’s consent is invalid, the fruits of the consequent search should have been suppressed. Accordingly, I would affirm the court’s order suppressing drug evidence obtained as a consequence of the unconstitutional intrusion into Richter’s home. For the foregoing reasons, I respectfully dissent.