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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                          Appellant       :
                                          :
                     v.                   :           No. 596 MDA 2014
                                          :
DANIEL F. LOUGHNANE                       :


                Appeal from the Order Entered March 17, 2014,
               in the Court of Common Pleas of Luzerne County
               Criminal Division at No. CP-40-CR-0000046-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 21, 2018

      This case comes before us on remand from the Supreme Court of

Pennsylvania for further consideration consistent with its opinion.         See

Commonwealth         v.   Loughnane,     173   A.3d   733,   746   (Pa.   2017).

Specifically, our supreme court directed us to determine whether exigent

circumstances existed, permitting the police to enter Daniel F. Loughnane’s

(hereinafter, “appellee”) driveway and seize his Ford F-350 pickup truck

without a warrant. Upon careful review, we affirm the suppression court’s

order as it pertains to the suppression of any evidence obtained from

appellee’s truck.1


1 Upon our initial review,   we also considered whether the suppression court
erred when it excluded       testimony pertaining to security tapes and still
photographs and whether      the suppression court abused its discretion when it
suppressed the audio          recording of John Schenk, III’s 911 call.
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      As we noted in our initial opinion, the applicable standard of review 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 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), quoted by Loughnane, 128 A.3d at 812.

            Both the United States Constitution and the
            Pennsylvania Constitution guarantee that individuals
            shall not be subject to unreasonable searches or
            seizures.

                  The right of the people to be secure in
                  their persons, houses, papers, and
                  effects, against unreasonable searches
                  and seizures, shall not be violated, and
                  no Warrants shall issue, but upon
                  probable cause, supported by Oath or
                  affirmation, and particularly describing
                  the place to be searched, and the
                  persons or things to be seized.

            U.S. Const. amend. IV.

                  The people shall be secure in their
                  persons, houses, papers and possessions
                  from    unreasonable    searches    and



Commonwealth v. Loughnane, 128 A.3d 806, 812 (Pa.Super. 2015). Our
supreme court denied allocatur as to these issues. Commonwealth v.
Loughnane, 158 A.3d 1224 (Pa. 2016).


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                seizures, and no warrant to search any
                place or to seize any person or things
                shall issue without describing them as
                nearly as may be, nor without probable
                cause, supported by oath or affirmation
                subscribed to by the affiant.

          Pa. Const. Art. I, § 8. A search or seizure conducted
          without a warrant is, under the Fourth Amendment
          and Article I, Section 8, presumed to be
          unreasonable. Commonwealth v. McCree, 924
          A.2d 621, 627 (Pa. 2007) (citations omitted).

          Evidence obtained as a result of an unlawful search
          is subject to the fruit of the poisonous tree doctrine.
          The United States Supreme Court has stated that
          any material, tangible, or verbal evidence “obtained
          either during or as a direct result of an unlawful
          invasion” is inadmissible at trial. Wong Sun v.
          United States, 371 U.S. 471, 485 (1963).

          Our supreme court further stated:

                We need not hold that all evidence is
                “fruit of the poisonous tree” simply
                because it would not have come to light
                but for the illegal actions of the police.
                Rather, the more apt question in such a
                case is “whether, granting establishment
                of the primary illegality, the evidence to
                which instant objection is made has been
                come at by exploitation of that illegality
                or    instead   by   means      sufficiently
                distinguishable to be purged of the
                primary taint.”

          Commonwealth v. Cunningham, 370 A.2d 1172,
          1176-1177 (Pa. 1977), quoting Wong Sun, 371 U.S.
          at 487-488.

          Pennsylvania courts have recognized that the
          protections afforded to individuals under both the
          Fourth Amendment and Article I, Section 8 are
          applicable to the curtilage of a person's home.


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            Commonwealth v. Bowmaster, 101 A.3d 789, 792
            (Pa.Super.2014) (citations omitted). This court
            defined the curtilage of the home as places “where
            the occupants have a reasonable expectation of
            privacy that society is prepared to accept.” Id. citing
            Commonwealth v. Johnson, 68 A.3d 930, 935 n. 3
            (Pa.Super. 2013) (citations omitted).

Loughnane, 128 A.3d at 815-816.

      In 2014, our supreme court adopted the federal automobile exception

in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014).                  The federal

automobile exception permitted the police to conduct a warrantless search

on a vehicle upon the establishment of probable cause; however, it was no

longer necessary to demonstrate exigent circumstances “beyond the mere

mobility of the vehicle.” Id. at 138.

      In the instant case, our supreme court held that the federal

automobile exception did not apply to appellee’s truck when it was parked

on his private residential driveway, as the driveway constituted curtilage.

See Loughnane, 173 A.3d at 745. In light of our supreme court’s holding,

the Commonwealth must demonstrate both probable cause and exigent

circumstances beyond the mere mobility of the vehicle in order to seize a

vehicle from an individual’s private driveway without a warrant. Accordingly,

we must now determine whether the Commonwealth demonstrated exigent

circumstances beyond the mere mobility of appellee’s truck.

      When determining whether exigent circumstances exist, several

factors must be considered, including “a likelihood that evidence will be



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destroyed if police take the time to obtain a warrant.” Commonwealth v.

Lee, 972 A.2d 1, 4 (Pa.Super. 2009), quoting Commonwealth v. Roland,

637 A.2d 269, 270-271 (Pa. 1994).        “Moreover, this Court has observed

that, ‘the Commonwealth must present clear and convincing evidence that

the circumstances surrounding the opportunity to search were truly exigent,

[] and that the exigency was in no way attributable to the decision by police

to forego seeking a warrant.’” Id., quoting Commonwealth v. Rispo, 487

A.2d 937, 940 (Pa.Super. 1985).

      The Commonwealth argues that the following exigent circumstances

justified seizing appellee’s truck without a warrant:

            [not knowing] the whereabouts of [appellee;] not
            getting cooperation from [appellee’s] family, friends
            and employers about his whereabouts; [the police]
            had been made aware that a spare set of the keys
            were in the toolbox of the vehicle readily available to
            anyone who decided to remove it; [and the police]
            did not have additional law enforcement available to
            sit on the vehicle and was concerned that evidence
            on the vehicle may be compromised by the weather.

Commonwealth’s brief at 21.

      A   reading   of   the   suppression   hearing    testimony     belies   the

Commonwealth’s assertion of exigent circumstances.           Wilkes-Barre City

Police Department Detective David Sobocinski testified that he received a

phone call notifying him of the presence of the truck in appellee’s driveway

on the afternoon of August 8, 2012. (Notes of testimony, 2/18/14 at 169.)

Detective Sobocinski further testified that he was not able to simultaneously



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secure the truck and obtain a search warrant, as the process of obtaining a

warrant would take approximately 2-3 hours. (Id. at 169-170.) Due to rain

in the forecast for the evening of August 8, 2012, Detective Sobocinski

decided to seize the truck without a warrant and called the Wilkes-Barre city

tower and directed him to tow the truck to the Wilkes-Barre city garage.

(Id. at 167-168; 171.) Detective Sobocinski testified that the truck was not

actually seized until the early morning hours of August 9, 2012.               (Id. at

184-185; 199.)

        Detective Sobocinski further testified that he originally requested a

uniformed Wilkes-Barre police officer to “stand by,” but Detective Sobocinski

failed to specifically ask for coverage for the purposes of securing the truck

while     a   search     warrant    was      obtained.2       (Id.   at      175-176.)

Detective Sobocinski also failed to ask the police officer sent by the

neighboring Hanover Police Department to secure the truck while he

obtained a search warrant. (Id. at 178.)

        Based on the record before us, we find that the Commonwealth failed

to establish clear and convincing evidence of exigent circumstances that

would     justify   seizing   appellee’s    truck   without   a   warrant.       While

Detective Sobocinski testified that the threat of rain in the weather forecast


2 Detective Sobocinski testified that it is common practice for a detective in
plain clothes to have a uniformed officer present to “stand by” to show a
visible police presence and because “people feel more comfortable when a
police car is there.” (Id. at 175.)



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for the evening of August 8, 20123 necessitated the truck to be seized

without a warrant, the truck was not actually seized until the early morning

hours of August 9, 2012. Such a delay in the seizure of the truck belies the

Commonwealth’s argument that a search warrant could not be obtained in a

timely manner because Detective Sobocinski testified that it would only take

2-3     hours   to   obtain   a   warrant.     The    record   establishes   that

Detective Sobocinski could have obtained a search warrant in the time

between when he was notified of the truck’s location and the time the truck

was actually seized.      Additionally, we agree with the suppression court’s

conclusion that Detective Sobocinski could have requested law enforcement

assistance to secure the truck while he obtained a search warrant.

        In our initial opinion, we remanded to the suppression court for a

determination of whether the police established probable cause to seize

appellee’s truck without a warrant. Loughnane, 128 A.3d at 817. Because

we have determined that the Commonwealth failed to demonstrate that

there were exigent circumstances that would justify seizing appellee’s truck

without a warrant, this issue is now moot.

        We, however, also reversed the part of the suppression court’s order

in which the suppression court did not permit Peter Sladin, an employee of

Legion Security monitoring the Hawkeye Camera Center on the night of the

incident, to testify as to the place and time of a still photograph that Sladin


3   The incident central to this case took place on July 24, 2012.


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took from video surveillance cameras4 in the area of 199 Hazle Street in

Wilkes-Barre, Pennsylvania.    See id. at 809, 812.     We held that Sladin

would be able to authenticate the photograph pursuant to Pa.R.E. 901(b)(1)

and (9), and that he should be permitted to testify.       Id. at 814.   We,

therefore, vacate the suppression court’s March 17, 2014 order and remand

for further proceedings consistent with this memorandum.

        Order affirmed in part and reversed in part.5   Case remanded for

further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/21/2018




4The Hawkeye camera system only preserves video footage for 10-14 days.
At no point was the video intentionally erased or deleted. Id. at 810.

5   See id. at 814-815, 818.


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