J-S07025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JUDD HARRISON SHUMAKER

                            Appellant                 No. 1241 MDA 2015


              Appeal from the Judgment of Sentence July 10, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003578-2014


BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                 FILED APRIL 28, 2016

        Judd Harrison Shumaker appeals from the judgment of sentence

imposed on July 10, 2015, in the Court of Common Pleas of Berks County.

That same day, at the conclusion of a stipulated bench trial, the trial court

convicted Shumaker of possession of a controlled substance (cocaine) and

two counts of possession of drug paraphernalia.1 The trial court sentenced

Shumaker to an aggregate term of two years’ probation.              On appeal,

Shumaker challenges the court’s denial of his suppression motion pursuant

to Florida v. Jardines, 133 S. Ct. 1409 (U.S. 2013).           After a thorough


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(16) and (a)(32), respectively.
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review of the submissions by the parties, the certified record, and relevant

law, we affirm.

       The trial court made the following findings of fact, based upon the

evidence presented at the November 21, 2014, suppression hearing:

       1.     On or about June 6, 2014, Officer Peter O’Brien of the Bern
              Township Police Department was dispatched to 91 Tobias
              Lane in Bernville, Berks County, Pennsylvania to check on
              a resident who was reportedly under the influence of a
              controlled substance.

       2.     It was dark outside, so Office[r] O’Brien illuminated a
              pathway to the residence with a flashlight.

       3.     As he approached the residence, Officer O’Brien noticed
              that [Shumaker] was sitting on the porch.

       4.     Officer O’Brien observed that [Shumaker] was holding a
              box on his lap, and asked [him] if any weapons were in the
              box.

       5.     [Shumaker] replied, “No,” and quickly opened and closed
              the box, revealing what Officer O’Brien immediately
              recognized as a glass pipe commonly used to smoke crack
              cocaine.

       6.     Officer O’Brien asked [Shumaker] to give him the box so
              that he could retrieve the pipe.

       7.     [Shumaker] opened the box, removed a small orange
              metal container, and attempted to conceal it in his left
              hand.[2]



____________________________________________


2
   The notes of testimony indicate that after Shumaker removed the small
orange container, he handed over the box to Officer O’Brien.       N.T.,
11/21/2014, at 8.



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       8.     After Officer O’Brien informed [Shumaker] that he saw him
              remove the container from the box, [Shumaker] handed
              the container to the Officer.

       9.     Officer O’Brien opened the container to ensure that a small
              weapon, such as a razorblade, was not inside.

       10.    Upon opening the container, Officer O’Brien discovered
              thirty small bags of suspected crack cocaine.

       11.    The entire interaction between Officer        O’Brien   and
              [Shumaker] lasted less than a minute.

Findings of Fact and Conclusions of Law in Disposition of Shumaker’s

Omnibus Pretrial Motion, 12/23/2014, at 2-3.

       Shumaker was arrested and charged with one count of possession of

controlled substance and two counts of possession of drug paraphernalia.

On October 1, 2014, he filed a motion to suppress evidence. A hearing was

held regarding the matter on November 21, 2014. On December 23, 2014,

the court denied Shumaker’s suppression motion.              Shumaker’s case

proceeded to a one-day stipulated non-jury trial on July 10, 2015. The court

convicted him of all counts. That same day, the court sentenced him to one

year of probation on the cocaine possession count and one year of probation

for each paraphernalia count, running concurrently with each other but

consecutive to the possession conviction.        Shumaker did not file a post-

sentence motion but did file this timely appeal.3

____________________________________________


3
   On July 20, 2015, the trial court ordered Shumaker to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
(Footnote Continued Next Page)


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      In Shumaker’s sole issue, he contends the court erred in denying his

motion to suppress because the police did not possess reasonable suspicion

that he was engaged in criminal activity to justify a Terry4 stop or search.

Specifically, relying on Jardines, he states:

            Here, police, responding to an anonymous telephone call of
      an overdose, observed [Shumaker] sitting on his front porch in
      no state of physical distress and not committing any criminal
      offenses. [Shumaker] was sitting with a box on his lap. Police
      immediately entered the porch of [Shumaker]’s house, decided
      to search for weapons and asked [him] if there were weapons in
      the box on his lap.        In response to police questioning
      [Shumaker] stated that there were not and opened the box,
      displaying apparent drug paraphernalia.

             The key distinction between this and questioning which
      might be acceptable under an implied license to approach a
      residence and make contact is that police physically invaded the
      curtilage when [it] was not necessary to do so in order to make
      contact with the occupant, who was sitting on the front porch.
      Police could have approached and made inquiries of [Shumaker]
      without confronting him within the curtilage after deciding to
      search for weapons for no apparent reason.

Shumaker’s Brief at 11-12. Moreover, Shumaker argues:

      To march onto the front porch without asking permission to
      conduct a search of an occupant’s person and effects for
      weapons is physically intrusive.      Further, the scope of any
      license – express or implied – is limited not only to a particular
      area but also to a specific purpose[.] The social norms that
      invite a visitor to approach an occupant on his front porch do not
      invite him onto the porch or invite him onto the porch to conduct
                       _______________________
(Footnote Continued)

Shumaker filed a concise statement on August 3, 2015. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 6, 2015,
incorporating and adopting its December 23, 2014 findings of fact and
conclusions of law.
4
   Terry v. Ohio, 392 U.S. 1 (1968).



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     a search. No one is impliedly invited to enter the protected
     premises of the home in order to do nothing but conduct a
     search.

Id. at 13.    Shumaker concludes the police did not possess reasonable

suspicion and therefore, he was improperly seized within the curtilage of his

home. Id. at 14.

     This Court’s well-settled standard of review of a denial of a motion to

suppress evidence is as follows:

           [An appellate court’s] 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 of the record as a whole. Where the suppression court’s
     factual findings are supported by the record, [the appellate court
     is] bound by [those] findings and may reverse only if the court’s
     legal conclusions are erroneous. Where ... 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 []
     plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations

and quotation marks omitted).

     In Commonwealth v. Boswell, 721 A.2d 336 (Pa. 1998), the

Pennsylvania Supreme Court explained:

     Interaction between police and citizens may be characterized as
     a “mere encounter,” an “investigative detention,” or a “custodial
     detention.” Police may engage in a mere encounter absent any

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     suspicion of criminal activity, and the citizen is not required to
     stop or to respond. Commonwealth v. Vasquez, 703 A.2d 25,
     30 (Pa. Super. 1997). If the police action becomes too intrusive,
     a mere encounter may escalate into an investigatory stop or a
     seizure. Commonwealth v. Jackson, 428 Pa. Super. 246,
     249, 630 A.2d 1231, 1233 (1993). If the interaction rises to the
     level of an investigative detention, the police must possess
     reasonable suspicion that criminal activity is afoot, and the
     citizen is subjected to a stop and a period of detention. Id.
     Probable cause must support a custodial detention or arrest. Id.

     To decide whether a seizure has occurred, we apply the following
     objective test: “a court must consider all the circumstances
     surrounding the encounter to determine whether the police
     conduct would have communicated to a reasonable person that
     the person was not free to decline the officers’ requests or
     otherwise terminate the encounter.” [Florida v. Bostick, 501
     U.S. 429, 439, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)]. In
     applying this test, it is necessary to examine the nature of the
     encounter. Commonwealth v. Lewis, 535 Pa. 501, 508, 636
     A.2d 619, 623 (1994). Circumstances to consider include, but
     are not limited to, the following: the number of officers present
     during the interaction; whether the officer informs the citizen
     they are suspected of criminal activity; the officer’s demeanor
     and tone of voice; the location and timing of the interaction; the
     visible presence of weapons on the officer; and the questions
     asked. Terry v. Ohio, [392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d
     889 (1968)], supra; [Interest of Jermaine, 399 Pa. Super.
     503, 582 A.2d 1058, 1060-61 (Pa. Super. 1990)]. See also
     United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870,
     64 L.Ed.2d 497 (1980). “[O]therwise inoffensive contact
     between a member of the public and the police cannot, as a
     matter of law, amount to a seizure of that person.”
     Mendenhall, [446 U.S.] at 555, 100 S.Ct. 1870, 64 L. Ed. 2d
     497.

Id. at 340.

     Moreover,

     [i]t is well established that “[a]bsent probable cause and exigent
     circumstances, warrantless searches and seizures in a private
     home violate both the Fourth Amendment and Article 1,
     [Section] 8 of the Pennsylvania Constitution.” Commonwealth

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     v. Gibbs, 2009 PA Super 181, 981 A.2d 274, 279 (Pa. Super.
     2009). Our courts have extended this constitutional protection
     to the curtilage of a person’s home by analyzing “factors that
     determine whether an individual reasonably may expect that an
     area immediately adjacent to the home will remain private.” Id.
     at 279. “Curtilage is entitled to constitutional protection from
     unreasonable searches and seizures as a place where the
     occupants have a reasonable expectation of privacy that society
     is prepared to accept.” Commonwealth v. Fickes, 2009 PA
     Super 64, 969 A.2d 1251, 1256 (Pa. Super. 2009).

Commonwealth v. Simmen, 58 A.3d 811, 815 (Pa. Super. 2012).

     Additionally, where an investigation takes place in a constitutionally

protected area, the question becomes “whether it was accomplished through

an unlicensed physical intrusion.”   Jardines, 133 S. Ct. at 1415 (footnote

omitted). In Jardines, the Supreme Court explained:

     While law enforcement officers need not “shield their eyes” when
     passing by the home “on public thoroughfares,” [California v.
     Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 90 L. Ed. 2d 210
     (1986)], an officer’s leave to gather information is sharply
     circumscribed when he steps off those thoroughfares and enters
     the Fourth Amendments protected areas. In permitting, for
     example, visual observation of the home from “public navigable
     airspace,” we were careful to note that it was done “in a
     physically nonintrusive manner.” Ibid.Entick v. Carrington, 2
     Wils. K. B. 275, 95 Eng. Rep. 807 (K. B. 1765), a case
     “undoubtedly familiar” to “every American statesman” at the
     time of the Founding, Boyd v. United States, 116 U.S. 616,
     626, 6 S. Ct. 524, 29 L. Ed. 746 (1886), states the general rule
     clearly: “[O]ur law holds the property of every man so sacred,
     that no man can set his foot upon his neighbour's close without
     his leave.” 2 Wils. K. B., at 291, 95 Eng. Rep., at 817.

                                      …

     “A license may be implied from the habits of the country,”
     notwithstanding the “strict rule of the English common law as to
     entry upon a close.” McKee v. Gratz, 260 U.S. 127, 136, 43 S.
     Ct. 16, 67 L. Ed. 167 (1922) (Holmes, J.). We have accordingly

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       recognized that “the knocker on the front door is treated as an
       invitation or license to attempt an entry, justifying ingress to the
       home by solicitors, hawkers and peddlers of all kinds.” Breard
       v. Alexandria, 341 U.S. 622, 626, 71 S. Ct. 920, 95 L. Ed.
       1233, 62 Ohio Law Abs. 210 (1951).            This implicit license
       typically permits the visitor to approach the home by the front
       path, knock promptly, wait briefly to be received, and then
       (absent invitation to linger longer) leave. Complying with the
       terms of that traditional invitation does not require fine-grained
       legal knowledge; it is generally managed without incident by the
       Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer
       not armed with a warrant may approach a home and knock,
       precisely because that is “no more than any private citizen might
       do.” Kentucky v. King, 563 U.S. ___, ___, 131 S. Ct. 1849,
       179 L. Ed. 2d 865, 881 (2011).

Id. at 1415-1416 (footnote omitted).5

       Thus,

       [w]hen an officer enters the curtilage, the key inquiry under the
       property based test becomes whether an “implied license” exists
       for the officer’s conduct within the curtilage. [Jardines, 133 S.
       Ct.] at 1415. For example, an implied license exists for the
       officer to approach the house by the front path without a warrant
       and knock on the front door for the purpose of asking the
       occupant about an ongoing investigation. Id. Such conduct is
       permissible because it is “no more than any private citizen might
       do.” Id. Conversely, an officer does not have an implied license
       to “explor[e] the front path with a metal detector, or march[] his
       bloodhound into the garden before saying hello and asking
       permission.” Id.

Commonwealth v. Eichler, __ A.3d __, 2016 Pa. Super. LEXIS 60, 16-17

n.5 [439 MDA 2015] (Pa. Super. Feb. 2, 2016).


____________________________________________


5
   See also Commonwealth v. Gibson, 638 A.2d 203, 207 (Pa. 1994)
(“the police have the power to knock on the doors of the citizens of this
Commonwealth for investigatory purposes without probable cause”).



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     Turning to the present matter, at the November 21, 2014, suppression

hearing, Officer O’Brien testified that on the night in question, he was

requested to respond to Shumaker’s house “to check on his well-being

regarding a possible heroin overdose.” N.T., 11/21/2014, at 4. The officer

stated it was dark and raining that evening and he noticed the garage door

was open with the light on. Id. at 5-6. He observed another individual run

to the back of the garage and hide. Id. He then saw Shumaker sitting on

the side porch of the house. Id. at 5. Officer O’Brien testified Shumaker

asked him what he was doing there and the officer responded that he was

there to check on Shumaker. Id. at 7. The officer observed that Shumaker

had a box on his lap and asked, “Are there any guns in there or any

weapons in there.” Id. Shumaker responded in the negative and “turned

the box and opened it showing [the officer] there were no guns in the box.”

Id. at 8. Officer O’Brien stated he saw “in the box that there was a glass

pipe that would be used to smoke crack cocaine.” Id.

     The officer indicated Shumaker quickly opened and closed the box so

he asked Shumaker to give him the box because he had seen the pipe. Id.

Officer O’Brien testified Shumaker opened the box again, removed a small

orange container, and handed over the box.    Id.   The officer then stated,

“Well, I just said, I saw you take that out of there.   And with that, he --




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without any prompting, he just handed [the container] over to me.” Id. at

8-9.6

        Based on the testimony, the trial court made the following conclusions

of law:

        2.    The encounter between Officer O’Brien and [Shumaker]
              constituted a mere encounter, as [Shumaker] was free to
              walk inside his home, or ask Officer O’Brien to leave.

        3.    [Shumaker] was not required to respond to Officer
              O’Brien’s questions, but did so voluntarily.

                                               …

        5.    Here, [Shumaker]’s consent to search was freely given.
              [Shumaker] was not physically detained, was not under
              arrest, and was not coerced in any fashion. When Officer
              O’Brien asked [Shumaker] if he had any weapons,
              [Shumaker] voluntarily opened the box, revealing the pipe
              to Officer O’Brien.

        6.    Similarly, after being informed by Officer O’Brien that the
              Officer saw him remove the small metal container from the
              box, [Shumaker] voluntarily handed the container to
              Officer O’Brien.

Findings of Fact and Conclusions of Law in Disposition of Shumaker’s

Omnibus Pretrial Motion, 12/23/2014, at 4-5.

        We agree with the trial court’s determination. The exchanges between

Officer O’Brien and Shumaker took place on the porch. Accordingly, the two

men were located in the curtilage of the residence, a part of the home for

____________________________________________


6
    Officer O’Brien indicated there were 30 small packets of rock cocaine
inside the container. Id. at 9.



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Fourth Amendment purposes. See Simmen, 58 A.3d 811, 815. Therefore,

as set forth in Jardines, we must determine whether the officer’s

investigation was achieved through “an unlicensed physical intrusion.”

Jardines, 133 S. Ct. at 1415.

     We find that Officer O’Brien’s actions in this case are dissimilar to the

investigating officers in Jardines who entered onto the porch of the home

with a drug-sniffing dog.    Here, Officer O’Brien merely walked up to the

porch to respond to a report that someone’s well-being was endangered

based on a possible heroin overdose.              Accordingly, Officer O’Brien

encountered   Shumaker      from   a   lawful   vantage   point   and   the   facts

surrounding the incident do not amount to an unlicensed physical intrusion.

     Furthermore, contrary to Shumaker’s argument, Officer O’Brien’s

interaction with Shumaker did not amount to a search as it was just a mere

encounter. In considering the circumstances surrounding the exchange, as

identified in Boswell, 721 A.2d at 340, the number of officers present

during the interaction; whether the officer informed Shumaker he was

suspected of criminal activity; the officer’s demeanor and tone of voice; the

location and timing of the interaction; the visible presence of weapons on

the officer; and the questions asked, it is evident that Officer O’Brien’s

conduct with respect to Shumaker was not offensive and cannot be

considered a seizure. While Officer O’Brien may have asked about weapons

to ensure his own personal safety, Shumaker was not required to respond to


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Officer O’Brien’s questions but did so of his own volition. Furthermore, the

officer did not tell Shumaker to open the box and did not put his own hands

on the box to seize and search. Officer O’Brien merely asked Shumaker if

there were any weapons in the box.

      Lastly, as the trial court correctly points out, Shumaker voluntarily

consented to showing Office O’Brien the contents of his box when he opened

it without any request to do so. See Commonwealth v. Kemp, 961 A.2d

1247, 1261 (Pa. Super. 2008) (the “following factors outlined therein are

pertinent to a determination of whether consent to search is voluntarily

given: 1) the presence or absence of police excesses; 2) whether there was

physical contact; 3) whether police directed the citizen’s movements; 4)

police demeanor and manner of expression; 5) the location of the

interdiction; 6) the content of the questions and statements; 7) the

existence and character of the initial investigative detention, including its

degree of coerciveness; 8) whether the person has been told that he is free

to leave; and 9) whether the citizen has been informed that he is not

required to consent to the search.”).    The evidence supports a conclusion

that Officer O’Brien did not compel Shumaker to do anything, let alone open

the box. Likewise, the fact that it was readily apparent to Officer O’Brien the

incriminating nature of the pipe in the box is no consequence because

Shumaker had voluntarily opened the box. Similarly, Shumaker voluntarily




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handed over the orange container without being requested to do so by the

officer.

      Because Officer O’Brien had a legitimate purpose for being on the

porch, the exchanges between him and Shumaker constituted a mere

encounter, and Shumaker voluntarily handed over the box and orange

container, we conclude the trial court did not err in denying Shumaker’s

motion to suppress. Accordingly, his sole issue on appeal fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2016




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