J-A17028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellant

                        v.

    AUBREY DEVON SIMPSON,

                             Appellee                  No. 1799 EDA 2016


                       Appeal from the Order May 12, 2016
              in the Court of Common Pleas of Montgomery County
                  Criminal Division at No.: CP-46-0007947-2014


BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED JANUARY 30, 2018

        The Commonwealth appeals from the trial court’s order granting the

motion to suppress of Appellee, Aubrey Devon Simpson.           We reverse and

remand.

        The trial court aptly set forth the relevant facts and procedural history

for our review in its August 22, 2016 opinion.

             The facts of this case are largely undisputed. Officer David
        Chiofolo testified that at 2:53 p.m., on June 23, 2014, he received
        a call to respond to a private security alarm that was activated at
        7720B Lucretia Mott Way in Elkins Park, PA. When he arrived at
        the premises, which is a building consisting of four apartments,
        each with their own external entrance, no audible alarm was
        sounding.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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           The officer knocked on the front door, and was greeted by a
       seven[-]year[-]old[-]girl.    The officer described her as
       “hysterically crying.” He testified that “[s]he was in a state of
       panic. She was crying. She was hysterical. She was hard to
       understand. She was frightened.”

            The officer questioned the child while she stood in the
       threshold. She stated that there was no one else in the apartment
       with her; that she had no idea how the alarm was activated; that
       her mother’s boyfriend had left her home alone approximately
       twenty minutes earlier, and she did not know where he had gone.
       The conversation lasted no longer than two minutes. The officer
       testified that he didn’t hear any noises coming from the apartment
       or see any activity inside.

            Following this conversation, Officer [Jarreau] Francis arrived
       on the scene. Officer Chiofolo then proceeded to search every
       room in the apartment.[1] The officer testified that his reasoning
       for the search was to make sure that there was no one in the
       apartment that needed medical attention, and to make sure that
       the child was not alone.

           Officer [] Francis testified similarly. He did not converse with
       the child prior to the search. When asked whether there was a
       threat of physical harm to anyone inside of the apartment when
       they decided to conduct the search, Officer Chiofolo replied that it
       was “unknown.”

            On April 27, 2016, [Appellee] moved for the suppression of
       physical evidence recovered from the search of her home.
       Following a hearing on May 12, 2016, [Appellee’s] motion was
       granted. The Commonwealth filed a notice of appeal on June 13,
       2016.[a] On June 14, 2016, th[e trial c]ourt entered an order for
       a concise statement of errors complained of on appeal to be filed
       within twenty-one days.      [See] Pa.R.A.P. 1925[(b)].      The
       Commonwealth’s statement was filed on July 5, 2016. [See id.


____________________________________________


1 While performing his visual sweep, Officer Chiofolo observed a Glock nine-
millimeter handgun with a magazine, without a gunlock, in plain view. (See
N.T. Hearing, 5/12/16, at 13-14, 18-19, 36). The firearm was fully loaded,
with a round in the chamber. (See id. at 37-38). Ultimately, Appellee was
charged with endangering the welfare of a child.

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J-A17028-17


     The trial court filed an opinion on August 22, 2016. See Pa.R.A.P.
     1925(a).]

           [a]The Commonwealth’s notice of appeal included a
           certification that the order which is under appeal will
           terminate or substantially handicap the prosecution
           pursuant to Pa.R.A.P. 311(d).

(Trial Court Opinion, 8/22/16, at 1-2) (some footnotes omitted).

     The Commonwealth raises one question for our review:

     Whether the suppression court erred by concluding that the search
     of an apartment for any adult supervisor (an investigatory sweep)
     was unreasonable under the Fourth Amendment of the U.S.
     Constitution where officers responding to a security alarm found
     the exigencies of an unattended distraught young child, who was
     crying hysterically and unable to tell police the whereabouts of her
     adult supervision?

(Commonwealth’s Brief, at 5).

     Our standard of review of this matter 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 (Pa. Super. 2012), appeal

denied, 70 A.3d 810 (Pa. 2013) (citation omitted).

     The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution provide:

     The right of the people to be secure in their persons, houses,
     papers, and effects, against unreasonable searches and seizures,

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      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. Constitution, Amend. IV.

      The people shall be secure in their persons, houses, papers and
      possessions from unreasonable searches and 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 Constitution Art. I, § 8.

           The primary objective of the Fourth Amendment to the U.S.
      Constitution and Article I, Section 8 of the Pennsylvania
      Constitution is the protection of privacy. As a general rule, for a
      search to be reasonable under the Fourth Amendment or Article I,
      Section 8, police must obtain a warrant, supported by probable
      cause and issued by an independent judicial officer, prior to
      conducting the search. This general rule is subject to only a few
      delineated exceptions[.]

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citations omitted).

      In the recent case of Commonwealth v. Livingstone, ___ A.3d ___,

2017 WL 5662399 (Pa. filed Nov. 27, 2017), the Pennsylvania Supreme Court

considered the community caretaking exception to the warrant requirement.

The Court observed:

      The United States Supreme Court first recognized a community
      caretaking exception to the warrant requirement in Cady v.
      Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706
      (1973). Therein, the Court considered whether police officers
      violated a vehicle owner’s Fourth Amendment rights when,
      without obtaining a warrant, they searched the trunk of a parked
      vehicle because they reasonably believed that the trunk contained
      a loaded service revolver that could endanger the public if left
      unsecured. The vehicle owner had been arrested one day earlier


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J-A17028-17


     for drunk driving and identified himself as a police officer. In
     determining that the search of the trunk was reasonable, the
     Court observed that police officers “frequently investigate vehicle
     accidents in which there is no claim of criminal liability and engage
     in what, for want of a better term, may be described as community
     caretaking functions, totally divorced from the detection,
     investigation, or acquisition of evidence relating to the violation of
     a criminal statute.” Id. at 441, 93 S.Ct. 2523. The high Court
     further opined that, “[t]he fact that the protection of the public
     might, in the abstract, have been accomplished by ‘less intrusive’
     means does not, by itself, render the search unreasonable.” Id.
     at 447, 93 S.Ct. 2523.

           The community caretaking doctrine has been characterized
     as encompassing three specific exceptions: the emergency aid
     exception; the automobile impoundment/inventory exception;
     and the public servant exception, also sometimes referred to as
     the public safety exception. See State v. Acrey, 148 Wash.2d
     738, 64 P.3d 594, 600 (2003) (en banc) (community caretaking
     function exception to the warrant requirement encompasses not
     only search and seizure of automobiles, but also situations
     involving either emergency aid or routine checks on health and
     safety).

           Each of the exceptions contemplates that the police officer’s
     actions be motivated by a desire to render aid or assistance,
     rather than the investigation of criminal activity.

                                  *    *    *

           This Court [] recognizes that the role of police is not limited
     to the detection, investigation, and prevention of criminal activity.
     Rather, police officers engage in a myriad of activities that ensure
     the safety and welfare of our Commonwealth’s citizens. Indeed,
     we want to encourage such laudable activity. However, even
     community caretaking activity must be performed in accordance
     with Fourth Amendment protections. Ultimately, we agree that
     the public servant exception may be employed consistent with
     these protections.

                                  *    *    *

          Specifically, we first hold that, in order for the public servant
     exception of the community caretaking doctrine to apply, police

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J-A17028-17


      officers must be able to point to specific, objective, and articulable
      facts that would reasonably suggest to an experienced officer that
      a citizen is in need of assistance. . . . . Second, we hold that, in
      order for the public servant exception of the community
      caretaking doctrine to apply, the police caretaking action must be
      independent from the detection, investigation, and acquisition of
      criminal evidence. As noted above, this is a common requirement
      to warrantless searches under all three exceptions of the
      community caretaking doctrine, including the emergency aid
      exception      and   the    automobile       impoundment/inventory
      exceptions. . . .

Livingstone, supra at *12-14, 19-20 (most citations omitted).

      In this case, police responded to the subject apartment because of a

triggered security alarm.     Upon arriving, they encountered a hysterical,

panicked, unattended seven-year-old girl, who could not explain the activated

alarm. Officer Chiofolo explained the officers’ decision to enter the apartment

upon being confronted with this scenario:

             The fear that [the child] was showing, the hystericalness
      (sic) that she was in, the crying. I wanted to make sure that her
      parents were not upstairs in the apartment and that there was no
      domestic involved, that nobody was hurt. I just wanted to make
      sure that she wasn’t by herself[,] that she was telling me the truth
      at that moment.

                                   *    *    *

            I didn’t know what was inside the apartment. It is not
      normal for a[] seven year old to be left by themselves. And she
      was so hysterical that I—in my mind, I believe maybe something
      transpired in the apartment.

                                   *    *    *

            I wanted to make sure that everybody was safe.

(Hearing, 5/12/16, at 11-12).


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J-A17028-17


       Similarly, Officer Francis explained:

       [Y]ou respond to an alarm and you have a young child crying at
       the front door. . . . [O]bviously there’s an unknown there. We
       have an alarm. We have a child. . . . We are talking about a young
       child by herself in an apartment. . . . So we are worried about
       maybe there was someone else in the apartment that was in
       danger or distress. So Officer Chiofolo checked not only to see if
       there’s anyone else that may need police assistance or medical
       assistance; but also for her safety and for our safety as well[.] . .
       .

(Id. at 32-35).

       Based on the foregoing testimony, we conclude that the trial court erred

in granting Appellee’s motion to suppress where the community caretaking

exception to the warrant requirement applied to the officers’ actions in

searching Appellee’s apartment.          See Miller, supra at 1278.         The record

reflects that the “police officers [were] able to point to specific, objective, and

articulable facts that would reasonably suggest to an experienced officer that

a   citizen   is   in   need   of   assistance”   where   a   hysterical,   apparently

unaccompanied seven-year-old child answered the door of an apartment

where a security alarm had been activated.            Livingstone, supra at *19

(citation omitted).        Additionally, “the police caretaking action [was]

independent from the detection, investigation, and acquisition of criminal

evidence.” Id. at *20. As both officers testified, they entered the apartment,




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J-A17028-17


not to search for criminal evidence, but to ensure everyone was safe and that

no one needed assistance.2

       Accordingly, for the foregoing reasons, we are constrained to reverse

the trial court’s order granting Appellee’s motion to suppress, and remand.

       Order reversed. Case remanded. Jurisdiction relinquished.




____________________________________________


2 We also observe that the warrantless search was supported by the exigent
circumstances exception.

             The exigent circumstances exception to the warrant
       requirement recognizes that some situations present a compelling
       need for instant arrest, and that delay to seek a warrant will
       endanger life, limb[,] or overriding law enforcement interests. In
       these cases, our strong preference for use of a warrant must give
       way to an urgent need for immediate action.

Commonwealth v. Caple, 121 A.3d 511, 518 (Pa. Super. 2015) (citation
omitted).

       The need to protect or preserve life or avoid serious injury is
       justification for what would be otherwise illegal absent an
       exigency or emergency. . . . [I]t would be silly to suggest that the
       police would commit a tort by entering . . . to determine whether
       violence (or threat of violence) has just occurred or is about to (or
       soon will) occur. . . .

Brigham City, Utah v. Stuart, 547 U.S. 398, 403-04 (2006) (citations and
quotation marks omitted).

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J-A17028-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/18




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