Commonwealth v. Arnold

OPINION BY

JOHNSON, J.:

¶ 1 In this case, we consider whether police officers may justify the search of a casual visitor to an apartment based upon the claim that the individual searched lacked a reasonable expectation of privacy in the apartment. Here, police officers, solely to investigate a noise complaint, entered the apartment without a warrant and without probable cause and exigent circumstances. While in the apartment, the officers observed the Appellant, Lee Arnold, pass a marijuana pipe to another person. The Commonwealth seeks to justify the subsequent search of Arnold’s person based solely upon his lack of a reasonable expectation of privacy in the apartment. The Commonwealth contends that for this reason, it would not need to support the officers’ warrantless entry with exigent circumstances.

¶2 Following a review of the circumstances at the moment of the intrusion, and applying the prevailing case law, we find the Commonwealth’s reliance on Arnold’s reasonable expectation of privacy in the apartment misplaced. The police officers did not search the apartment but instead searched Arnold’s person to find the contraband. As the police officers did not have a warrant, failed to demonstrate the exigency of the situation, and did not form the probable cause necessary to arrest Arnold, we find the officers’ entry into the apartment and the subsequent search of Arnold to be illegal. Hence, we conclude that the trial court erred in denying Arnold’s motion to suppress the drug evidence. Accordingly, we reverse the order denying suppression and remand the case to the trial court for proceedings consistent with this Opinion.

¶ 3 The relevant facts of this case are as follows. In the early morning hours on August 28, 2005, the police received a noise complaint from an apartment building at 325 Market Street in Newport Borough, Perry County. Residents of a downstairs apartment complained about noise coming from an upstairs apartment. Two troopers, Trooper Fultz and Trooper Kline with the Pennsylvania State Police, responded to the complaint. After speaking with the downstairs residents, Trooper Fultz went upstairs and approached a separate and distinct door from the downstairs apartment. Trooper Fultz knocked on the door and rang the doorbell but received no response. After finding the door unlocked, Trooper Fultz opened it, entered the apartment, and went to the bottom of a flight of stairs. Trooper Fultz testified that he believed that he was in a common area of the apartment building at this point. Trooper Fultz then saw a female come halfway down the steps, see the police, and run back up the steps yelling the police are here. Trooper Fultz followed the female up the steps and upon reaching the top of the steps, he observed Arnold pass a marijuana pipe to David Amtower. The troopers arrested Arnold and Amtower. A subsequent search of their persons revealed that both men had small amounts of marijuana.

114 The Commonwealth charged Arnold by criminal complaint with possession of a small amount of marijuana and possession of drug paraphernalia. See 35 P.S. §§ 780 — 113(a)(31)(i), (32) (respectively). On November 30, 2005, Arnold filed a motion to suppress the evidence, arguing that the officers entered the apartment without a warrant and without any articulable exigent circumstances. The trial court, the Honorable C. Joseph Rehkamp, P.J., denied the motion, finding that exigent circumstances and the officers’ good faith belief that they were in a common area when they observed the marijuana pipe justified the intrusion. On February 16, 2006, President Judge Rehkamp presided over a bench trial and found Arnold guilty of one count of possession of a small amount of marijuana and one count of possession of drug paraphernalia. Immediately thereafter, President Judge Reh-kamp sentenced Arnold to forty hours to thirty days’ incarceration for possession of small amount of marijuana and one year of probation along with a fine of $250.00 for possession of drug paraphernalia. The sentences were to be served concurrently. On February 23, 2006, Arnold filed a post-sentence motion, arguing the trial court abused its discretion when it imposed a sentence in the aggravated range because it did not specifically state any reasons on the record for such a sentence. The trial court denied this motion on March 28, 2006.

¶ 5 Arnold now appeals, raising the following questions for our review:

A. Did the Suppression Court err in denying the omnibus pretrial motion to suppress all evidence seized from appellant and the residence in violation of his rights under the Constitutions of the Commonwealth of Pennsylvania and the United States of America:

1. where . there was no probable cause to enter the residence without a warrant and where no exigent circumstances existed?

2. where the officer presented contradictory testimony as to the basis of his entry into the residence and relied upon a “good faith” exception to [the] warrant requirement where no such exception exists under the Pennsylvania Constitution?

B. Did the sentencing Court err in sentencing Defendant to a term of imprisonment in the aggravated range without placing the reasons therefore [sic] immediately upon the record:

1. where the defendant had a prior record score of zero (0) and reasons for the sentence in the aggravated range were not placed upon the record?

2. where defendant was sentenced in accordance with the 41st Judicial District De facto sentencing policy of giving all those convicted of Possession of a Small Amount of Marijuana forty-eight (48) hours of incarceration?

Brief for Appellant at 8 (formatting edited).

¶ 6 In his first question on appeal, Arnold contends that the trial court erred in failing to suppress the fruits of the illegal search. Brief for Appellant at 17. Our standard when reviewing a trial court’s denial of a motion to suppress is well-established:

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontra-dicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Cornelius, 856 A.2d 62, 70 (Pa.Super.2004) (citation omitted).

¶ 7 Arnold argues that the drug evidence should be suppressed because the police officers’ entry into the apartment was illegal as it was done without a warrant and without exigent circumstances. Brief for Appellant at 17. Arnold concludes that because the entry was unlawful, the fruits of the illegal search must be suppressed. Brief for Appellant at 17-18. After study, we agree and find that the disposition of this case is controlled by our Supreme Court’s decision in Commonwealth v. Roland, 535 Pa. 595, 687 A.2d 269 (1994), and this Court’s decision in Commonwealth v. Demshock, 854 A.2d 553 (Pa.Super.2004).

¶ 8 The Supreme Court of Pennsylvania, in Roland, set forth the principles and considerations expressed in the United States and Pennsylvania Constitutions governing warrantless searches of the home:

In a private home, searches and seizures without a warrant are presumptively unreasonable^] Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment. In determining whether exigent circumstances exist, a number of factors are to be considered[:] (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 made peacéably, 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. 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 time to obtain a warrant, or danger to police or other persons inside or outside the dwelling. Nevertheless, police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.

Where an offense being investigated is a minor one, a balancing of the foregoing factors should be weighted against finding that exigent circumstances exist.

* * * *

It is difficult to conceive of a warrant-less home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor.

Roland, 637 A.2d at 270-71 (internal citations and quotation marks omitted, emphasis added).

¶ 9 In Roland, police officers received a call indicating an assault had been perpetrated against a nineteen-year-old male. See Roland, 637 A.2d at 270. The victim told the police that he had been assaulted while at a party at Roland’s home. See id. The victim indicated that there was underage drinking as well as marijuana use at the party. See id. Based upon this information, the police proceeded to Roland’s home and knocked on the door. See id. When the door was opened,' the police observed several minors next to open cans of beer. See id. Believing that underage drinking was taking place, the police conducted a search of the home. See id. They found numerous opened and unopened cans of beer, a small bag of marijuana, marijuana seeds, and a pipe containing marijuana residue. See id. The police arrested Roland who subsequently admitted to providing minors with alcohol. See id. Roland filed a motion to suppress the evidence found by the police; however the trial court denied this motion. See id. Our Court affirmed the denial, holding that potential removal of the beer cans before the police could get a warrant justified the entry without a warrant. See id. at 271-72. Our Supreme Court reversed this Court, concluding the police had no exigent circumstances in entering the home without a warrant. See id. at 271. The Court stated that underage drinking “is not a grave crime of violence, such as might have justified a warrantless entry” and that the proper action by the police would have been to obtain a warrant prior to searching Roland’s home. Id.

¶ 10 Similarly, in Demshock, police officers were patrolling the parking lots of apartment buildings due to an increase of automobile theft and vandalism. See 854 A.2d at 554. During a patrol, Detective Hopple was walking between two apartment buildings when he observed, through a window, individuals he believed to be teens consuming beer. See id. Detective Hopple and other officers proceeded to the front door and knocked on the door while covering the peephole. See id. In response to the knocking, an occupant asked “who was there” to which Detective Hop-ple replied “[h]ey man, it is me.” Id. (citation omitted). The person opened the door and after seeing the police officers, backed away from the door. See id. The officers proceeded through the doorway and observed marijuana in plain sight. See id. at 554-55. The officers then told the teenagers that if anyone had marijuana, they should put it on the table. See id. at 555. Demshock threw a bag of marijuana onto the table. See id. The police arrested him and charged him with possession of marijuana and underage drinking. See id. Demshock filed a motion to suppress the evidence which the trial court denied. See id. This Court reversed the trial court, finding that the police did not articulate any exigent circumstances when entering the apartment. See id. at 556. This Court concluded that since the only observed offense, underage drinking, was a minor one, the police should have obtained a search warrant prior to entering the residence. See id. at 557-58. Further, this Court concluded that the Commonwealth’s proffered reason for the war-rantless entry, the need to prevent the destruction of drug evidence, was not supported by the record as the Commonwealth cannot provide retroactive justifications for an illegal entry. See id. at 557. The police found the drugs only after they had illegally entered the apartment and therefore, the presence of the drugs was not part of their reasoning in entering the apartment. See id. (“It is well established that police cannot rely upon exigent circumstances to justify a warrantless entry where the exigency derives from their own actions.”).

¶ 11 In both Roland and Demshock, police officers conducted warrantless intrusions upon occupants in a home whose first encounter with the police was after the front door of the home had been opened in response to a knock. In each of these cases, the police observed marijuana (Demshock) and underage drinking (Roland) upon entering. However, our Courts determined that the evidence found in the homes should be suppressed as the police could not cite any exigent circumstances allowing the initial entry into the home. See Roland, 637 A.2d at 271-72 (finding the underage teens could have been apprehended for illegal consumption of alcohol if they had left the home prior to obtaining a warrant); Demshock, 854 A.2d at 557 (finding that entry by the officers into home was solely based upon an attempt to cite teens for underage drinking).

¶ 12 The facts in the case at bar do not reach even the gravity of the summary offenses found in Roland and Demshock. While in those cases, the police entered the premises after observing- underage drinking, in the present case, the police had no independent reason to be on the premises other than the report of a summary offense of a noise violation. See Roland, 637 A.2d at 271 (finding “[a]n important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense[.]”). Trooper Fultz did not observe any illegal activity prior to entering the apartment. Following the reasoning found in Roland and Demshock, the summary offense of a noise violation, without any other evidence of illegal activity, would not allow police officers to enter an apartment absent a warrant or probable cause and exigent circumstances. Since the officers did not have a warrant and could not articulate exigent circumstances at the time of the entry, they were not legally entitled to be inside the apartment. Furthermore, to the extent the trial court found that the intrusion was justified based upon the officers’ good faith belief that they were entering a common area of the apartment building, we conclude that this finding is in error. Our Supreme Court has specifically ruled that there is no good faith exception to the exclusionary rule. See, e.g., Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 888 (1991) (concluding that a “good faith” exception to the exclusionary rule in Pennsylvania would frustrate the privacy guarantees embodied in Article I, Section 8 of the Pennsylvania Constitution). As the search occurred only after the police officers unlawfully entered the apartment without probable cause and exigent circumstances, the subsequent seizure of the marijuana and the marijuana pipe should have been suppressed as the fruits of an illegal search.

¶ 13 The Commonwealth contends, however, that since Arnold, as a visitor, had no reasonable expectation of privacy in the apartment, the fact that the police were illegally on the premises does not prohibit the search and seizure. Brief for Appellee at 5-6. The Commonwealth, relying principally upon our Supreme Court’s ruling in Commonwealth v. Millner, 585 Pa. 237, 888 A.2d 680 (2005), argues that Arnold must first prove that he had a reasonable expectation of privacy in the place searched before the burden shifts to the Commonwealth to prove that the evidence was properly seized. Brief for Appellee at 6. While we agree with the reasoning in Millner as it applies to the facts of that case, we hold that it is factually inapposite to the case at bar.

¶ 14 Millner involved a defendant who attempted to suppress a weapon found in plain view in a vehicle. See 888 A.2d at 682. There, police officers were on a routine patrol when they heard gunshots. See id. at 683. After hearing from dispatch that there had been gunshots reported in their area, the police came upon two men standing outside a vehicle, one of whom was holding a gun. See id. As the police approached the two men, they saw one man place the gun into an open bag in the backseat of the vehicle. See id. The officers identified themselves and saw Millner close the trunk of the car and his companion throw a clear plastic bag to the ground. See id. The police officers found that the plastic bag contained drugs. See id. They then patted down Millner and found 41 packets of crack cocaine. See id. After placing Millner under arrest, the police found $449 in cash on his person and subsequently seized the gun out of the vehicle. See id. Millner attempted to have the gun suppressed; however, our Supreme Court found that he failed to meet his burden of establishing a reasonable expectation of privacy in the parked vehicle and that the gun should not be suppressed. See id. at 692.

¶ 15 Millner involved a seizure of evidence from a vehicle after the police officers had arrested the suspect. Our Supreme Court premised its allowance of the seizure on the fact Millner did not have a reasonable expectation of privacy in the vehicle. However, prior to the seizure, the officers had heard gunshots, observed the defendant and his companion with a gun, found drugs on the defendant, and arrested the defendant. Significantly, the officers observed the gun from a public street, a vantage point where they were legally entitled to be. By contrast, here, the police were inside the apartment illegally. The police did not observe any unlawful activity and had no reason to enter the apartment apart from an alleged noise violation. The officers had not secured a warrant and were not able to articulate probable cause and exigent circumstances to enter the apartment. As the officers were unlawfully inside the apartment, their observation of the marijuana pipe in plain view would not allow the seizure of the pipe. See Commonwealth v. Davis, 743 A.2d 946, 952 (Pa.Super.1999) (citing Commonwealth v. Graham, 554 Pa. 472, 721 A.2d 1075, 1079 (1998)) (“[E]vidence may be seized by the police when it is in ‘plain view³ only if the police observe the evidence from a vantage point [at] which they are legally entitled to be.”) (emphasis in original). Moreover, the subsequent search and seizure of the marijuana from Arnold’s person was illegal as the police were unlawfully on the premises, could not articulate a reason for conducting the search, and most importantly, Arnold had a reasonable expectation of privacy in his person. See Pa. Const. art. I, § 8 (“The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures[.]”) (emphasis added).

¶ 16 For these reasons, we conclude that the fact that Arnold was not a resident of the apartment is not relevant in the disposition of this matter. Indeed, to apply the reasoning of Millner under the facts found here would permit police officers to provide retroactive justifications and randomly invade homes on the pretense that any person found to be a non-resident after the fact could be searched. See Demshock, 854 A.2d at 556-57 (finding police must articulate exigent circumstances at time of entry and cannot provide retroactive justifications to demonstrate exigent circumstances). Allowing the Commonwealth to provide such justifications following a random invasion into a home without a warrant or probable cause and exigent circumstances would trivialize the protections afforded by the United States and Pennsylvania Constitutions. See Davis, 743 A.2d at 953 (reiterating that allowing the police to observe illegal activities by their own unlawful means “emasculates the protections afforded to appellant and all citizens by the United States and Pennsylvania Constitutions.”). As the police officers did not legally enter the apartment, we conclude that the drug evidence and paraphernalia should have been suppressed as the fruits of an illegal entry and search. See Demshock, 854 A.2d at 559 (concluding that the entry and search of the apartment was unconstitutional and hence the fruits of the search should have been suppressed).

¶ 17 As we find the evidence should have been suppressed, we find no need to address Arnold’s second question related to sentencing.

¶ 18 For the foregoing reasons, we reverse the judgment of sentence and remand the case to the trial court with instruction to suppress the evidence seized by the officers.

¶ 19 Judgment of sentence REVERSED. Case REMANDED for further proceedings consistent with this Opinion. Jurisdiction RELINQUISHED.

¶ 20 LALLY-GREEN, J„ files a Dissenting Opinion.

3 . The Majority cites Commonwealth v. Demshock, 854 A.2d 553 (Pa.Super.2004), in support of its position that the police lacked exigent circumstances. Respectfully, Dem-shock does not control because it did not examine the threshold "reasonable expectation of privacy” issue, as our Supreme Court precedent requires. I also note that Dem-shock relied heavily on Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269 (1994). The Roland Court did not examine the "reasonable expectation of privacy” issue, either. The Roland Court may not have examined the issue because it was conceded and obvious, insofar as the police entered the defendant’s own home.