J-A34042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JASON EDWARD BEAMER

                        Appellant                    No. 608 MDA 2014


          Appeal from the Judgment of Sentence March 21, 2014
            In the Court of Common Pleas of Lycoming County
             Criminal Division at No: CP-41-CR-0000854-2013


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

MEMORANDUM BY STABILE, J.:                         FILED MARCH 24, 2015

      Appellant, Jason Edward Beamer, appeals from the trial court’s March

21, 2014 judgment of sentence imposing six months of intermediate

punishment for driving under the influence of alcohol in violation of 75

Pa.C.S.A. § 3802(a)(1). We affirm.

      A police officer investigating a motor vehicle accident traversed a

portion of Appellant’s driveway and, from that vantage point, observed

Appellant standing on his unenclosed concrete slab back porch. The police

officer initiated a conversation with Appellant, and Appellant agreed to

undergo field sobriety testing, which took place in his driveway. The police

officer never left Appellant’s driveway. Appellant was apprehended after he

failed the field sobriety tests. Appellant filed a pretrial motion to suppress

evidence, arguing the officer invaded the curtilage of his property without a
J-A34042-14


warrant or probable cause and exigent circumstances.        The sole issue on

appeal is whether the trial court erred in denying Appellant’s suppression

motion.

      The trial court’s October 30, 2013 opinion offers a detailed recitation of

the pertinent facts:

            On April 4, 2013 at 6:39 PM, Corporal Morris Sponhouse
      (Sponhouse) of the Old Lycoming Township Police Department
      was dispatched to the area of 2400 Northway Road Ext for a
      motor vehicle accident. Approximately five (5) minutes later,
      Sponhouse arrived at the scene and observed two individuals
      standing next to an operable but damaged motorcycle on the
      side of the road. The driver and passenger of the motorcycle
      stated that they were following a white dump truck and as they
      started to pass the truck in a passing zone they were cut off.
      The driver and passenger stated that the dump truck did not
      have working taillights or use a turn signal when it turned onto a
      driveway at 2400 Northway Road Ext. The passenger from the
      motorcycle pointed to the dump truck, which was visible from
      the road, and stated that a white male exited the truck, did not
      respond to requests to come to the location of the motorcycle,
      and walked behind a house next to the driveway.              While
      Sponhouse talked to the driver and passenger a white female
      from the house walked to the location of the motorcycle and
      indicated she wanted to talk. Sponhouse told her he would talk
      to her after he finished with the motorcycle occupants but she
      walked away.

            Sponhouse parked his unmarked vehicle halfway down the
      driveway and walked towards the end of the driveway where the
      dump truck was located. The driveway extended past both the
      back of the house and the attached porch. Based on a drawing
      that Sponhouse drew during his testimony, he never went
      beyond the area of the driveway or the side of the house/porch.
      Once Sponhouse got near the dump truck on the driveway he
      saw [Appellant] grilling chicken under the porch. Specifically,
      [Appellant] was located on a concrete slab that had a roof above
      it. The roof did not have enclosed walls and was open to the
      outside other than the section that connected to the house.



                                     -2-
J-A34042-14


              Sponhouse asked [Appellant] what happened while he was
       standing on the driveway and [Appellant] stated that the
       motorcycle must have lost control while he turned into the
       driveway.    After informing [Appellant] that the driver and
       passenger of the motorcycle said the dump truck did not have
       working taillights or use a turn signal, [Appellant] agreed to
       have the lights of his truck checked. None of [Appellant’s] lights
       worked except for one on the front passenger side of the dump
       truck.

             While [Appellant] walked to the dump truck to check the
       truck’s lights, Sponhouse observed that [Appellant] did not have
       proper balance.       While continuing to communicate with
       [Appellant] about the vehicle’s lights he further noticed that
       [Appellant] had slurred speech, red eyes, and that he smelled of
       alcohol. [Appellant] agreed to conduct field sobriety exercises
       on the driveway. As a result, [Appellant] was charged with one
       count of Driving Under Influence of Alcohol or Controlled
       Substance.

Trial Court Opinion, 10/30/13, at 1-2.

       After the trial court denied Appellant’s suppression motion, the case

proceeded to a January 15, 2014 bench trial, at the conclusion of which the

trial court found Appellant guilty of violating § 3802(a)(1).       This timely

appeal followed. Appellant argues, based on Corporal Sponhouse’s allegedly

unlawful entry into the curtilage of Appellant’s home, that the trial court

should have suppressed all evidence Corporal Sponhouse gathered during

that   encounter.     That   evidence    consists   of   Corporal   Sponhouse’s

observations of Appellant, the field sobriety test results, and Appellant’s

eventual refusal to submit to a blood test after the allegedly unlawful arrest.

       “Our standard of review in addressing a challenge to a trial court’s

denial of a suppression motion is limited to determining whether the factual

findings are supported by the record and whether the legal conclusions
                                     -3-
J-A34042-14


drawn from those facts are correct.” Commonwealth v. Houck, 102 A.3d

443, 455 (Pa. Super. 2014).

           [W]e may consider only the evidence of the prosecution
     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 record supports the findings of the
     suppression court, we are bound by those facts and may reverse
     only if the court erred in reaching its legal conclusions based
     upon the facts

Id. (quoting Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa. Super.

2008) (en banc)).    “It is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.” Id. (quoting Commonwealth v. Clemens, 66 A.3d 373,

378 (Pa. Super. 2013)).

     Absent   probable    cause   and   exigent   circumstances,   warrantless

searches of a private home violate the Fourth Amendment to the United

States Constitution and Article 1, § 8 of the Pennsylvania Constitution.

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

constitutional protection against warrantless searches extends to the

curtilage surrounding the home. Commonwealth v. Gindlesperger, 706

A.2d 1216, 1219-20 (Pa. Super. 1997), affirmed, 743 A.2d 898 (Pa. 1999),

cert. denied, 533 U.S. 915 (2001).        “The curtilage area surrounding a

private house is entitled to protection under the Fourth Amendment as a

place where the occupants have a reasonable expectation of privacy that

society is prepared to accept.” Id. Courts define curtilage “by reference to

the factors that determine whether an individual reasonably may expect that
                                    -4-
J-A34042-14


an area immediately adjacent to the home will remain private.” Id. (quoting

Oliver v. United States, 466 U.S. 170, 180 (1984)).

      Entry upon private property, however, is not strictly forbidden.

Recently, the United States Supreme Court wrote:

             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. We have accordingly 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. 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.

Florida v. Jardines, 133 S. Ct. 1409, 1415-16 (2013) (citations and

quotation marks omitted, emphasis added).

      In denying Appellant’s motion, the trial court relied on Simmen.

There, the homeowner heard a crash, went outside and observed damage to

a retaining wall, a stair rail, and his mailbox. Simmen, 58 A.3d at 813. The

defendant’s bumper was torn from the car and remained in the homeowner’s

driveway. Id. The investigating police officers followed a trail of fluid to the

defendant’s home. Id. A vehicle was parked in the defendant’s driveway

leaking fluid and missing its front bumper. Id. Police knocked on the front

door and spoke to the defendant’s wife, who permitted them to enter the



                                     -5-
J-A34042-14


home and speak to the defendant. Id. at 814. The defendant was arrested

for drunk driving. Id.

       We concluded police did not invade the curtilage of the defendant’s

home by walking on the driveway, as the driveway was accessible by the

general public:

              Based on the description of the driveway, and the location
       of the car on it, there was no evidence presented at the time of
       the suppression hearing to support an assertion that there was
       any expectation of privacy in the area. The driveway was in the
       front of the house, leading from the street to the garage
       contained within the actual residence. The car was parked in
       plain view of the street on the driveway, within twenty (20) feet
       of the road. There was no evidence of signs warning against
       trespass on the driveway or that the driveway was gated or
       fenced or shielded from the view of the street in any way. In
       fact, it appears from the description of the house that access to
       the front door of the residence was made via the driveway.
       These facts certainly suggest that there could be no reasonable
       expectation of privacy in the area of the driveway.

Id. at 815-16 (quoting the trial court’s opinion with approval).    Since the

driveway was accessible to the public, this Court concluded the driveway

was a lawful vantage point from which police could observe the defendant’s

damaged vehicle. Id. at 816.

       Appellant relies on Commonwealth v. Lee, 972 A.2d 1 (Pa. Super.

2009), in support of his argument that Corporal Sponhouse violated the

Fourth Amendment because he invaded the curtilage of Appellant’s home.1


____________________________________________


1
  We note that no issue of exigent circumstances exists in this case. The
Commonwealth has not filed a brief, choosing instead to rely on the trial
(Footnote Continued Next Page)

                                           -6-
J-A34042-14


In Lee, a homeowner heard a crash and observed a pickup truck speed

away. Id. at 2. The defendant destroyed the homeowner’s mailbox and a

tree in her yard. Id. A police officer followed a trail of antifreeze from the

site of the crash to the defendant’s home. Id. The officer parked his car in

front of the defendant’s home, walked down the defendant’s driveway and

observed the rear end of a pickup truck parked behind the defendant’s

home. Id. The officer continued behind the defendant’s home and observed

severe damage to the front end of the truck.                 Id.   The defendant’s wife

brought him outside to talk to the police, and he was arrested for drunk

driving. Id. On appeal, this Court concluded the search was illegal. Id. at

5.   The Commonwealth did not dispute the defendant’s privacy interest in

the area behind his home where the investigating officer observed the

damage to front end of the truck.                Id. at 4.   Rather, the parties in Lee

disputed the existence of exigent circumstances.

      Lee is legally and factually inapposite. Legally it is inapposite because

the Commonwealth did not contest that the officer’s investigation invaded

the curtilage of the defendant’s home and therefore implicated his Fourth

Amendment rights.         Rather, the parties disputed the existence of exigent

circumstances. Factually, Lee is inapposite because the investigating officer

went behind the defendant’s home.                 Here, Corporal Sponhouse traversed
                       _______________________
(Footnote Continued)

court’s opinion. The trial court did not rely on exigent circumstances to
support its denial of Appellant’s suppression motion.


                                            -7-
J-A34042-14


Appellant’s driveway until he observed Appellant standing outside on a

porch. N.T. Hearing, 9/20/13, at 6. From his vantage point on the driveway

alongside Appellant’s house, Corporal Sponhouse observed Appellant grilling

chicken on an unenclosed concrete slab porch.               Id. at 6-7.    Corporal

Sponhouse     initiated   conversation,   and   Appellant    walked   to   Corporal

Sponhouse and agreed to allow an inspection of the truck’s lights. Id. at 7.

Corporal Sponhouse did not follow Appellant into the house when Appellant

went inside to retrieve his driver’s license. Id. at 9. Corporal Sponhouse

waited until Appellant came back outside and then administered field

sobriety tests in the driveway.     Id.   In summary, Corporal Sponhouse did

not proceed behind Appellant’s home to collect evidence that otherwise

would have been hidden from view.         In traversing the driveway, Corporal

Sponhouse presumably used the same route taken by any visitor to

Appellant’s home, such as the trick-or-treaters or girl scouts mentioned in

Jardines.

     The trial court summarized the evidence as follows:

           Here, the dump truck that was in question was visible not
     only from the road but also from the location of the vehicle
     accident. Sponhouse testified that he did not see a fence or any
     signs warning against trespass. The driveway led from the road
     to the side of [Appellant’s] house.     Based on Sponhouse’s
     testimony, he never went beyond the side of the house/porch or
     the outside of the driveway prior to [Appellant’s] consent to
     check the lights on the truck. Unlike Lee, Sponhouse did not
     leave the driveway. Therefore, based on the characteristics of
     the driveway, this Court finds that [Appellant] did not have a
     reasonable expectation of privacy to the driveway and that
     Sponhouse was permitted to enter the driveway to investigate.

                                      -8-
J-A34042-14


Trial Court Opinion, 10/30/13, at 4-5 (emphasis added).

     We discern no abuse of discretion or legal error in the trial court’s

ruling, and the record supports the court’s recitation of the facts.     The

Simmen Court held that a defendant does not have a reasonable

expectation of privacy in a driveway that is open to the general public.

Simmen, 58 A.3d at 816.         Likewise, a driveway open to the public is a

lawful vantage point from which a police officer can make observations not

subject to suppression.   Id.     Appellant’s argument rests entirely on his

assertion that Corporal Sponhouse invaded the curtilage of Appellant’s home

before he observed and interacted with Appellant.           The record, as

summarized above, supports the trial court’s finding that the driveway was

open to the public and that Corporal Sponhouse never left the driveway

during his investigation. Based on all of the foregoing analysis, we conclude

Appellant’s argument lacks merit.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




                                     -9-
