Com. v. Layer, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SAQUANA TAWANE LAYER : No. 1489 MDA 2022
Appeal from the Order Entered October 13, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005925-2021
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 08, 2023
Both of my esteemed colleagues agree that Layer’s suppression motion
was correctly granted because the officers’ discovery of the contraband
occurred outside the bounds of a legitimate protective sweep. In the lead
memorandum, Judge Pellegrini, standing alone, further opines that the police
had no valid reason to conduct a protective sweep of the upper floor of the
house in the first place. I respectfully disagree with both positions. I would
hold that neither basis warranted suppression because the contraband was
properly observed in plain view during a justified protective sweep. Therefore,
I dissent.
I begin by reiterating our standard of review. If supported by the
certified record, we are bound by a suppression court’s findings of fact. See,
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* Retired Senior Judge assigned to the Superior Court.
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e.g., Commonwealth v. Ross, 297 A.3d 787, 791 (Pa.Super. 2023) (citation
omitted). “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.” Id. (citation omitted).
The facts found by the trial court relevant to the decision to conduct a
protective sweep are supported by the certified record and are as follows. See
Trial Court Opinion, 12/22/22, at 2-3, 6. When arriving to execute the arrest
warrant for Hightower, the police were unsure of the number of people in the
house because they had been unable to surveil the rear of the property.
Suppression Hearing, 4/8/22, at 28. Initially, when the police knocked and
announced their presence, they observed movement in an upstairs window.
Id. at 7, 40. The officers encountered physical resistance at the front door
while taking Hightower into custody and pushback from the other side of the
door after Hightower was outside and handcuffed. Id. at 8-9, 40-41.
Even with Hightower secured, however, the police had an another ten
to fifteen minutes of tasks to perform before finalizing the arrest and leaving
with him. Id. at 10. Specifically, the arrestee had to be prepared for
transportation, which involved addressing “shoes, shirts, phone numbers,
medications, things of that nature.” Id. In addition, the officers there were
required to prepare a receipt inventory considering there was a warrant
executed, which alone would take several minutes. Id. Accordingly, with any
unknown occupants posing a potential safety threat to the officers while they
remained on site, Officer Adam Nothstein and other officers entered the
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residence to begin performing a protective sweep “immediately” after
Hightower was cuffed. Id. at 43.
The lead memorandum, by maintaining that the sweep was not
warranted on the ground that officers had secured the suspected occupants
in the building, appears to oversimplify the arrest procedure and disregard the
trial court’s factual findings. Since the sustainable findings of the court amply
demonstrate that the officers articulated “specific facts to justify a reasonable
fear for the safety of [the] police officers,” the subsequent sweep was legally
justified. Commonwealth Hall, 199 A.3d 954, 95 (Pa.Super. 2018).
Accordingly, I would not disturb the trial court’s determination in this regard.
Likewise, I cannot agree with the combined Majority’s alternative
holding that even if the protective sweep of the second-floor bedroom was
proper, Officer Fouad nonetheless exceeded the scope of the sweep at the
time he observed the marijuana and packaging materials on the dresser. I
believe that this rationale, which essentially adopts the trial court’s basis for
granting suppression, misapplies the law to the facts surrounding the
execution of the sweep. I would find that suppression was not warranted
because the marijuana and other contraband discovered on the dresser were
properly observed by Officer Fouad in plain view.
It is well-settled that, since “[t]here can be no reasonable expectation
of privacy in an object that is in plain view,” there is no constitutional violation
for “the warrantless seizure of an object when: (1) an officer views the object
from a lawful vantage point; (2) it is immediately apparent to him that the
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object is incriminating; and (3) the officer has a lawful right of access to the
object.” Commonwealth v. Heidelberg, 267 A.3d 492, 504 (Pa.Super.
2022) (en banc) (cleaned up). “To judge whether the incriminating nature of
an object was immediately apparent to the police officer, reviewing courts
must consider the totality of the circumstances. In viewing the totality of the
circumstances, the officer’s training and experience should be considered.”
Id. (cleaned up).
In their discussion, my colleagues properly disregard the fact that the
officer observed wads of cash in the top dresser drawer because the trial court
determined that, as a matter of fact, the dresser was closed at the time of the
sweep. See Lead Memorandum at 13-14; Concurring Memorandum at 2-3.
However, they then proceed to state as follows:
Officer Fouad also acknowledged that no one could hide
behind the dresser because it was positioned against a wall, nor
could anyone fit within the dresser drawers. Under these
circumstances, we would conclude that a limited protective sweep
of the second floor for hidden persons would not have led to police
observation of tiny specks of suspected marijuana on top of a
dresser.
Lead Memorandum at 14. By making this determination, I believe that the
Majority either applies an improper and overly restrictive interpretation of the
plain-view doctrine or disregards it entirely.
This Court has defined a protective sweep as “a quick and limited search
of premises, incident to an arrest and conducted to protect the safety of police
officers or others.” Commonwealth v. Potts, 73 A.3d 1275, 1282 (Pa.Super.
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2013). Consistent with that purpose, we have stated that a search for persons
“cannot be lengthy or unduly disruptive.” Commonwealth v. Crouse, 729
A.2d 588, 598 (Pa.Super. 1999). Nonetheless, an officer conducting this
search is not required to avert his gaze from contraband visible from his lawful
vantage point. See Commonwealth v. Potts, 73 A.3d 1275, 1282
(Pa.Super. 2013) (concluding that “officers were not required to ignore the
marijuana they saw in [the a]ppellant’s bedroom while conducting [a
protective] sweep”).
Here, the door to the master bedroom could not be fully opened to be
flush with the wall, as the dresser in question was behind it. See Defendant’s
Exhibit 6. Therefore, to ascertain whether someone was hiding in the corner
of the room behind the door, Officer Fouad was required to partially close the
door and look behind it. As he did so, the top of the dresser was immediately
present before him, in plain view and close proximity. See N.T. Suppression
Hearing, 4/8/22, at 81 (Officer Fouad testifying that the top of the dresser
was about the same height as his shoulders). From his vantage point, without
manipulation of any items, he was able to see loose marijuana, a box of
sandwich bags, and a stack of resealable packets containing cartoon
depictions of colorful anthropomorphic fruit with bloodshot eyes smoking
marijuana cigarettes. The bundle of resealable packets sat on the corner of
the dresser that was next to the hinge of the bedroom door, closest in point
to where any reasonable officer would look to see if someone was hiding
behind the door. See Defendant’s Exhibit 4. The bits of marijuana leaf, while
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not particularly large, appeared vibrant in color and were close to the other
contraband in the center of the dresser. See Defendant’s Exhibit 5.
From these uncontroverted facts, I cannot agree with my learned
colleagues that Officer Fouad exceeded the scope of the sweep at the moment
he observed these items. The evidence does not suggest that he engaged in
any lengthy or disruptive search while preforming the sweep, nor is there any
support for a contention that Officer Fouad’s observations entailed closely
looking at the dresser in a way that exceeded the scope of the protective
sweep. Concerning the loose marijuana, while certain photographs of the
dresser from a distance made it difficult to discern the specks, Officer Fouad
was clear in his testimony that his point of view at the time of the sweep was
not as far away as the perspective in most of the photos. See N.T.
Suppression Hearing, 4/8/22, at 66. Additionally, while the Majority cursorily
notes the small size of the marijuana leaves, it seemingly overlooks the readily
apparent box of marijuana paraphernalia on top of the dresser inches away.
The officer testified that based on his training experience, these other items
found are used as “packaging for weed, for marijuana.” Id. at 65.
To the extent the Majority’s holding relies upon a finding that the officer
was only permitted to scan the limited area behind the door without physically
observing any items on top of the dresser, this is not the law. See Potts,
supra at 1282. In my view, that interpretation of the plain-view doctrine
would unreasonably require a police officer who sees drug-packing items in
plain view on a bedroom dresser to close his eyes and disregard other
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incriminating items nearby simply because it is smaller in size. I cannot
condone such a restrictive interpretation.
Accordingly, I would hold that the Officer Fouad’s observations of the
contraband and marijuana on the dresser were proper under the plain-view
doctrine and, consequently, the evidence obtained from execution of the
search warrant was not excludable as fruit of the poisonous tree. Therefore,
I believe the trial court erred in suppressing the items ultimately seized from
the residence.
For all of the foregoing reasons, I respectfully dissent.
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