Com. v. Wesby, J.

J-A03023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JACK WESBY
Appellee No. 238 EDA 2015
Appeal from the Order December 18, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003534-2013
BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.
MEMORANDUM BY MUNDY, J.: FILED MARCH 03, 2016
The Commonwealth appeals from the December 18, 2014 order
granting the suppression motion filed by Appellee, Jack Wesby. After careful
review, we reverse and remand for further proceedings.
On October 5, 2012, Wesby was arrested and charged with drug-
related offenses. On May 15, 2014, Wesby filed a motion to suppress
physical evidence obtained from the search of his apartment, Number 7,
located at 2800 Cecil B. Moore Avenue, Philadelphia.
A suppression hearing commenced on November 6, 2014, at which the
Commonwealth presented the sole witness, Philadelphia Police Officer David
Rausch. Officer Rausch testified to being on duty on North 28 th Street on
the evening of October 5, 2012, and conducting surveillance for the illegal
sale of narcotics. N.T., 11/6/14, at 8-10. Around 8:10 p.m., Officer Rausch
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saw a black male, later identified as Samuel Harris, approach Wesby, engage
in a brief conversation, and hand Wesby United States currency. Id. at 11.
Wesby then entered the building at 2800 Cecil B. Moore Avenue, exited
approximately 20 seconds later, and handed Mr. Harris a small item. Id.
Officer Rausch relayed what he saw to back-up officers, who stopped Mr.
Harris at 8:15 p.m. and recovered a packet of crack cocaine from him. Id.
Also at 8:15 p.m., a black male later identified as Andrew Albrooks
approached Wesby and engaged in a brief conversation. Id. at 12. Mr.
Albrooks handed Wesby United States currency; Wesby then entered the
building on Cecil B. Moore Avenue, exited the building approximately 20
seconds later, and handed Mr. Albrooks a small item. Id. Officer Rausch
again notified back-up officers, who stopped Mr. Albrooks and recovered
“one clear knotted baggie containing alleged crack cocaine” from him. Id.
At approximately 8:20 p.m., another black male, later identified as
John Savage, approached Wesby. Id. Mr. Savage engaged in conversation
with Wesby and gave him money. Id. Once more, Wesby entered the
building on Cecil B. Moore Avenue, and returned approximately 20 seconds
later and handed Mr. Savage a small item, after which Officer Rausch
notified back-up officers. Id. at 12-13. The back-up officers stopped Mr.
Savage and recovered one packet of alleged crack cocaine from him. Id. at
13.
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After the third transaction, another officer, Officer Cherry, stopped and
arrested Wesby, and recovered from him thirty dollars, a cell phone, and
keys to Apartment 7 in the Cecil B. Moore Avenue building. Id. at 13.
Officer Rausch testified as follows.
[Wesby] was arrested. He was in possession of keys, keys
used to open Apartment No. 7. It was secured to make
sure no one else was inside of it. And then the Narcotics
Strike Force was notified to draw up a search and seizure
warrant.
Id. at 16-17. Officer Rausch “had backup go in and secure the apartment
building, Apartment No. 7, 2800 C.B. Moore Avenue.” Id. Officer Rausch
testified that the apartment was secured to preserve evidence, and “make
sure no one else was inside of it.” Id. at 16-17, 21-22. He also “notified
Narcotics Strike Force for a search warrant.” Id. at 13. While Wesby’s
apartment was secured, and prior to receiving and executing the warrant,
the police did not recover any evidence from the apartment. Id. at 18.
Officer Rausch testified, “there was evidence in plain view, but it was all kept
where it was” until the execution of the warrant. Id.
Officer Rausch explained that he was not permitted to prepare the
warrant because “departmental policy” was that “only Strike Force and Field
Unit” prepared search warrants. Id. at 34. Officer Rausch “wrote up the
whole affidavit part” for the warrant, which was issued for the building at
2800 Cecil B. Moore Avenue. Id. at 34-36. The warrant listed Wesby as the
“owner, occupant, or possessor” of the property to be searched. Id. at 37.
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Before Officer Rausch conducted the surveillance, he “had some information
… of a specific apartment” in the Cecil B. Moore Avenue building, but during
surveillance, he did not see Wesby enter a specific apartment when he went
into the building. Id. at 16, 25. The search warrant and its supporting
affidavit of probable cause were entered into evidence as Exhibit C-1. Id. at
19.
After hearing testimony from Officer Rausch as the sole witness,
followed by argument from counsel, the suppression court took the matter
under advisement. On December 18, 2014, the suppression court convened
the parties and stated its determination that “the affidavit of probable cause
failed to establish sufficient probable cause to search Apartment No. 7.
Therefore, entry into the apartment, even after a search warrant was
secured, was unlawful.” N.T., 12/18/14, at 3. The suppression court
entered a corresponding order granting Wesby’s suppression motion.
The Commonwealth filed a timely appeal on January 15, 2015. With
its notice of appeal, the Commonwealth certified that the suppression court’s
order would terminate or substantially handicap the prosecution of Wesby.
See Pa.R.A.P. 311(d) (permitting Commonwealth appeal from an
interlocutory order if it certifies that the order will terminate or substantially
handicap the prosecution). The same day, the Commonwealth preemptively
filed a statement of errors complained of on appeal pursuant to Pennsylvania
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Rule of Appellate Procedure 1925(b). The suppression court issued its Rule
1925(a) opinion on May 7, 2015.
On appeal, the Commonwealth presents the following issue for our
review.
Did the lower court err in suppressing 85
grams of crack cocaine and other evidence found in
[Wesby’s] apartment where there was probable
cause to believe that contraband would be found
therein, the police legitimately entered the
apartment to prevent destruction of the evidence
while they obtained a warrant, and the evidence was
subsequently recovered pursuant to the lawfully
issued warrant?
Commonwealth’s Brief at 4.
The Commonwealth specifically asserts that the affidavit of probable
cause supporting the search warrant “established that the police had
received information that [Wesby] resided in a particular apartment in a
particular building and was selling drugs at the location. The application also
detailed the fact that police confirmed through their own surveillance that
[Wesby] was selling drugs right outside the apartment building[.]” Id. at 9.
The Commonwealth further avers, “[t]he fact that police entered the
apartment prior to the approval of the warrant did not provide a basis for
suppressing the evidence. The police lawfully entered the property to secure
it because they legitimately feared someone inside might have learned of
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[Wesby’s] arrest and would destroy the evidence before the warrant
arrived.” Id.1
Our standard of review in addressing a challenge to the suppression
court’s granting of a suppression motion is well settled.
When the Commonwealth appeals from a
suppression order, we follow a clearly defined
standard of review and 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.
The suppression court’s findings of fact bind an
appellate court if the record supports those findings.
The suppression court’s conclusions of law, however,
are not binding on an appellate court, whose duty is
to determine if the suppression court properly
applied the law to the facts.
Commonwealth v. Miller, 56 A.3d 1276, 1278-1279 (Pa. Super. 2012)
(citations omitted). “Our standard of review is restricted to establishing
whether the record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression court’s legal
conclusions.” Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010)
(citation omitted).
With regard to search warrants, we have explained the following.
It is well-established that for a search warrant
to be constitutionally valid, the issuing authority
must decide that probable cause exists at the time of
its issuance, and make this determination on facts
described within the four corners of the supporting
____________________________________________
1
Wesby elected not to file a brief in this matter.
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affidavit, and closely related in time to the date of
issuance of the warrant. It is equally well
established that a reviewing court [must] pay great
deference to an issuing authority’s determination of
probable cause for the issuance of a search warrant.
Moreover, our Supreme Court has recognized that
affidavits supporting search warrants normally are
prepared ..., ‘by nonlawyers in the midst and haste
of a criminal investigation,’ and, accordingly, said
affidavits, should be interpreted in a ‘common sense
and realistic’ fashion rather than in a hypertechnical
manner.
Commonwealth v. Griffin, 24 A.3d 1037, 1043 (Pa. Super. 2011) (some
quotation marks and citations omitted). “It must be remembered that
probable cause is based on a finding of the probability of criminal activity,
not a prima facie showing of criminal activity.” Commonwealth v. Luton,
672 A.2d 819, 822 (Pa. Super. 1996).
Here, the affidavit of probable cause attached to the application for the
search warrant reads as follows.
ON 10-5-12 AT APPROXIMATELY 7:50PM P/O
RAUSCH SET UP A PLAIN CLOTHES SURVEILLANCE
FOR THE ILLEGAL SALES OF NARCOTICS IN THE
1600 BLOCK OF N. 28TH ST. P/O RAUSCH HAD
RECEIVED INFORMATION THAT A B/M, NAME JACK
WESBY, WHO LIVED AT 2800 C.B. MOORE AVE APT
7, WAS INVOLVED IN ILLEGAL NARCOTICS SALES
AT THAT LOCATION.
UPON SETTING UP MY SURVEILLANCE I OBSERVED
A B/M, LATER ID’D AS JACK WESBY, WEARING A
BLUE POLO SHIRT AND BLUE JEANS STANDING IN
THE 1600 BLOCK OF N. 28TH STREET.
AT APPROXIMATELY 8:10PM A B/M, LATER ID’D AS
SAMUEL HARRIS, WEARING A GRAY HOODY AND
BLUE JEANS APPROACHED WESBY. THE TWO
ENGAGED IN A BRIEF CONVERSATION WHICH
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RESULTED IN HARRIS HANDING WESBY U.S.
CURRENCY WHICH HE ACCEPTED AND IN RETURN
WESBY ENTERED 2800 C.B. MOORE AVE FOR
APPROXIMATELY 20 SECONDS. WESBY RETURNED
AND HANDED HARRIS A SMALL ITEM WHICH
HARRIS ACCEPTED. HARRIS THEN WALKED EB ON
2800 C.B. MOORE AVE. BACKUP WAS NOTIFIED.
AT APPROXIMATELY 8:15PM HARRIS WAS STOPPED
IN THE 2700 BLOCK [OF] C.B. MOORE AVE BY SGT.
YOUNG WHO RECOVERED 1 YELLOW TINTED
HEATSEALED PACKET CONT. AN OFF WHITE CHUNKY
SUBSTANCE ALLEGED CRACK COCAINE FROM
HARRIS’ LEFT FRONT JEANS POCKET WHICH WAS
PLACED ON PR# 3070808. HARRIS WAS TRANS TO
THE 22ND DISTRICT FOR PROCESSING.
AT APPROXIMATELY 8:15PM WESBY WAS
APPROACHED BY A B/M, LATER ID’D AS ANDREW
ALSBROOKS[2], WEARING A WHITE SHIRT AND BLUE
JEAN SHORTS. THE TWO ENGAGED IN A BRIEF
CONVERSATION WHICH RESULTED IN ALSBROOKS
HANDING WESBY U.S. CURRENCY WHICH HE
ACCEPTED AND AGAIN ENTERED 2800 C.B. MOORE
AVE FOR APPROXIMATELY 20 SECONDS. WESBY
RETURNED AND HANDED ALSBROOKS A SMALL
ITEM. ALSBROOKS THEN WENT EB ON 2800 C.B.
MOORE AVE. BACKUP WAS NOTIFIED.
AT APPROXIMATELY 8:19PM ALSBROOKS WAS
STOPPED BY P/O AYERS IN THE 1600 BLOCK OF 27TH
ST. AND RECOVERED 1 CLEAR SMALL KNOTTED
BAGGIE CONT. AN OFF WHITE CHUNKY SUBSTANCE
ALLEGED CRACK COCAINE FROM ALSBROOKS’
SHORTS POCKET WHICH WAS PLACED ON PR#
3070809. ALSBROOKS WAS TRANS TO THE 22ND
DISTRICT FOR PROCESSING.
____________________________________________
2
The proper spelling of the individual’s surname is not clear from the record;
the name is spelled “Albrooks” in the November 6, 2014 notes of testimony,
and “Alsbrooks” in the affidavit of probable cause.
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AT APPROXIMATELY 8:25PM WESBY WAS
APPROACHED BY A B/M, LATER ID’D AS JOHN
SAVAGE, WEARING A GRAY SLEEVELESS SHIRT AND
BLACK SWEAT PANTS. THE TWO ENGAGED IN A
BRIEF CONVERSATION WHICH RESULTED IN
SAVAGE HANDING WESBY U.S. CURRENCY WHICH
HE ACCEPTED AND AGAIN WENT INTO 2800 C.B.
MOORE AVE FOR APPROXIMATELY 20 SECONDS.
WESBY RETURNED AND HANDED SAVAGE A SMALL
ITEM. SAVAGE AND WESBY THEN SAT ON THE
CORNER OF 28TH AND C.B. MOORE.
AT APPROXIMATELY 8:30PM RAUSCH HAD BACKUP
COME IN AND STOP SAVAGE AND WESBY.
SAVAGE WAS STOPPED BY P/O WALLACE WHO
RECOVERED 1 YELLOW TINTED HEATSEALED
PACKET CONT. AN OFF WHITE CHUNKY SUBSTANCE
ALLEGED CRACK COCAINE FROM SAVAGE’S LEFT
HAND WHICH WAS PLACED ON PR# 3070810.
WESBY WAS STOPPED BY P/O CHERRY WHO
RECOVERED 30 DOLLARS U.S. CURRENCY WHICH
WAS PLACED ON PR# 3070811 AND 1 CELL PHONE
WHICH WAS PLACED ON PR# 3070812.
RAUSCH THEN HAD BACKUP GO TO 2800 C.B.
MOORE APT 7 AND SECURE THE LOCATION.
BACKUP WENT TO APT 7, KNOCKED ON THE DOOR
AND ANNOUNCED PRESENCE. THERE WAS NO
ANSWER FROM INSIDE SO POLICE USED THE KEYS
THAT WERE IN THE POSSESSION OF WESBY AND
ENTERED THE APARTMENT, MADE SURE THE SCENE
WAS SECURE, THEN NOTIFIED NARCOTICS STRIKE
FORCE IN ANTICIPATION OF A SEARCH WARRANT.
BOTH SAVAGE AND WESBY WERE TRANS TO 22ND
DISTRICT FOR PROCESSING.
NARCOTICS RECOVERED FROM HARRIS,
ALSBROOKS, AND SAVAGE WERE FIELD TESTED BY
P/O RAUSCH POSITIVE RESULTS FOR COCAINE
BASE.
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Commonwealth’s Exhibit C-1, Application for Search Warrant, Affidavit of
Probable Cause, 10/5/12, at 1-2.
Based on the hearing testimony of Officer Rausch and the affidavit of
probable cause, the suppression court concluded as follows.
The subject affidavit includes a detailed
account of Officer Rausch’s observations of the
alleged narcotics sales. It does not, however,
indicate how, or when, Officer Rausch came to
believe that Apartment 7 contained evidence related
to those transactions. The affidavit states only that:
P/O RAUSCH HAD RECEIVED INFORMATION THAT A
B/M, NAME JACK WESBY, WHO LIVED AT 2800 C.B.
MOORE AVE APT 7, WAS INVOLVED IN ILLEGAL
NARCOTICS SALES AT THAT LOCATION.
The search warrant relied heavily on this
“information” received by Officer Rausch. But this
blanket assertion alone left the issuing authority “no
substantial basis on which to assess the reliability of
the information provided to the affiant[].” See
Commonwealth v. Torres, 764 A.2d 532, 538 (Pa.
2001). Furthermore, the affidavit does not give any
indication of when Officer Rausch received the
information about Apartment 7, leaving the issuing
authority unequipped to evaluate whether the
information had grown stale. See [Commonwealth
v.] Hoppert, 39 A.3d at 363. Because the warrant
was issued without a sufficient showing of probable
cause to search Apartment 7, any physical evidence
recovered from the search was properly suppressed.
Suppression Court Opinion, 5/7/15, at 6 (footnote omitted).
Upon careful scrutiny of the uncontradicted facts of record, as well as
pertinent legal authority in conducting our de novo review, we are
constrained to disagree with the suppression court. Applying our standard of
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review, and giving “great deference” to the authority issuing the search
warrant, we recognize our Supreme Court’s mandate.
In considering an affidavit of probable cause, the
issuing magistrate must apply the “totality of the
circumstances test” which requires her to make a
practical, common-sense decision whether, given all
of the circumstances set forth in the affidavit …
including the veracity of and basis of knowledge of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime
will be found in a particular place. A court reviewing
a search warrant determines only if a substantial
basis existed for the magistrate to find probable
cause.
Commonwealth v. Johnson, 42 A.3d 1017, 1031 (Pa. 2012) (quotation
marks and citations omitted).
Instantly, the facts described within “the four corners of the supporting
affidavit” demonstrate “a substantial basis” upon which the issuing authority
could find probable cause. Johnson, supra; Griffin, supra. Furthermore,
the suppression court erred in concluding that “[i]t was irrelevant that the
officers ultimately entered Apartment 7 using a key found on [Wesby], as
that act was part of the unlawful entry itself.” Suppression Court Opinion,
5/7/15, at 4, n.5. The totality of the circumstances in this case, including
the key to Apartment 7 recovered from Wesby, establishes the “fair
probability” that contraband, i.e., additional evidence of Wesby’s illegal sale
of cocaine, would be found in Apartment 7, 2800 Cecil B. Moore Avenue,
consistent with Officer Rausch’s firsthand observation of Wesby’s three
transactions involving his entry and exit from 2800 Cecil B. Moore Avenue.
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Using a practical, common sense assessment of the facts of record from both
the supporting affidavit of probable cause and Officer Rausch’s testimony,
we agree with the Commonwealth that “inserting a key into a lock … does
not constitute a search[.]” Commonwealth’s Brief at 16-17; see also
Commonwealth v. Harvard, 64 A.3d 690, 695-696 (Pa. Super. 2013)
(concluding an officer’s use of a key fob to unlock a car is not a search
within the meaning of the Fourth Amendment).. Based on the foregoing, we
conclude that the suppression court erred in its “hypertechnical” reading of
the affidavit. See Griffin, supra.
Having established that the search warrant was supported by probable
cause, we turn to the Commonwealth’s assertion that the police legitimately
entered Apartment 7 to secure any evidence pending the execution of the
warrant. The suppression court found that “no exigent circumstances
justified the warrantless entry.” Suppression Court Opinion, 5/7/15, at 4.
In challenging this finding, the Commonwealth cites Commonwealth v.
Frank, 605 A.2d 356 (Pa. Super. 1992) (warrantless search was supported
by exigent circumstances, where police had just arrested outside defendant’s
apartment a person who was participating with defendant in drug
distribution network, and risk existed that defendant had observed arrest
and would succeed in destroying critical evidence, police had not
manufactured the exigent circumstances, and police had already applied for
a warrant and did not conduct more than preliminary search until it was
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obtained). We additionally note that the United States Supreme Court has
held that where probable cause exists to support the issuance of a warrant,
police may secure the residence of an individual to preserve the loss of
evidence while a warrant is diligently sought, and that given the nature of
the intrusion and the law enforcement interest at stake, the brief seizure of
the premises is permissible. Illinois v. McArthur, 531 U.S. 326, 331-332
(2001). However, our review of Pennsylvania case law militates against a
finding of exigent circumstances in this case.
Absent consent or exigent circumstances, private
homes may not be constitutionally entered to
conduct a search or to effectuate an arrest without a
warrant, even where probable cause exists.
Commonwealth v. Santiago, 736 A.2d 624 (Pa.
Super. 1999).
It is well-settled that exigent circumstances
excusing the warrant requirement arise where
the need for prompt police action is imperative.
Exigent circumstances can be generated when
evidence sought to be preserved is likely to be
destroyed or secreted from investigation, or
because the officer must protect himself from
danger to his person by checking for concealed
weapons. Whether exigent circumstances
exist depends on ‘an examination of all of the
surrounding circumstances in a particular
case.’
Commonwealth v. Peterson, 408 Pa.Super. 22,
596 A.2d 172, 179 (1991) quoting Commonwealth
v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616, 618
(1983).
In determining whether exigent circumstances
exist, a number of factors are to be
considered. Among the factors to be
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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 a strong reason to believe
that the suspect is within the premises to be
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. These factors
are to be balanced against one another in
determining whether the warrantless intrusion
was justified.
Commonwealth v. Roland, 535 Pa. 595, 599, 637
A.2d 269, 270–71 (1994). Other factors may also
merit consideration, such as whether there is 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. Id.
Commonwealth v. Griffin, 785 A.2d 501, 505-506 (Pa. Super. 2001).
It is undisputed that Officer Rausch observed three interactions
between Wesby and individuals who were immediately and subsequently
stopped and found to possess cocaine. The three interactions occurred
quickly and in close proximity to Wesby’s residence at 2800 C.B. Moore
Avenue, which he entered and exited in 20 second increments when
transacting with the three individuals. Officer Rausch testified that he
sought to have Apartment 7 secured “to preserve evidence, [and to] make
sure no one else was in the apartment.” N.T., 11/6/14, at 17. Yet Officer
Rausch “had no knowledge of who else was in the apartment,” id., and did
not otherwise articulate any other factors to demonstrate “the likelihood that
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evidence would be destroyed” while police took the time to obtain a warrant,
or “a danger to police or other persons inside or outside” the apartment.
See Commonwealth v. Melendez, 676 A.2d 226, 231 (Pa. 1996) (mere
speculation that evidence may be destroyed because suspects may learn of
police activity is inadequate to justify a warrantless entry, and in any event,
police may not bootstrap themselves into exigencies by their own conduct).
Accordingly, we find no error of law in the suppression court’s conclusion
that police secured Apartment 7 in the absence of exigent circumstances.
Our analysis, however, does not end with the lack of exigency, because we
agree with the Commonwealth’s assertion that even if the police improperly
entered Apartment 7 before obtaining the search warrant, suppression of the
evidence was not justified because the evidence was not seized until the
subsequently issued warrant was executed. Commonwealth’s Brief at 26-
29, citing Commonwealth v. Byrd, 987 A.2d 786, 794 (Pa. Super. 2009)
(suppression of evidence is not available as a remedy for unlawful police
conduct where the evidence was obtained by means independent of the
unlawful police conduct). The record is uncontroverted that “all of the
evidence was seized pursuant to the lawfully issued warrant,” and the initial
entry by police into the apartment “did not play a role in the obtaining of the
warrant...,” such that suppression was not appropriate. Commonwealth’s
Brief at 28-29.
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In sum, we conclude that the suppression court erred in suppressing
the evidence found in Wesby’s apartment where there was probable cause to
believe that contraband would be found there, and although the police
entered Apartment 7 in the absence of exigent circumstances, the evidence
was subsequently recovered pursuant to the lawfully issued warrant.
Accordingly, we reverse the order granting suppression, and remand this
case for further proceedings, consistent with this memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2016
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