J-A18019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DONALD JOHN BRILL

                            Appellant                No. 1956 MDA 2013


            Appeal from the Judgment of Sentence October 3, 2013
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0002696-2012


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                             FILED MAY 15, 2015

        Donald John Brill appeals from the judgment of sentence imposed by

the Court of Common Pleas of Lancaster County following his conviction for

possession with intent to manufacture or deliver,1 intentional possession of a

controlled substance by a person not registered,2 and one count of

possession of drug paraphernalia.3 After careful review, we affirm.

        The underlying facts of the case are as follows. On February 10, 2012,

at 10:25 a.m., East Earl Township Police Officer Daniel Nipper responded to

an ambulance assist call at 1081 Weaverland Road. When he arrived on the

____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(2).
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scene he was met by Sandra Baumer, who explained that she called 9-1-1

because she was unable to contact her sister, Carol Brill (Carol), who lived at

the Weaverland Road address.       She told Officer Nipper that Carol had a

recent medical issue that caused her to faint unexpectedly.      Baumer also

told him that there was an unlocked window at the rear of the property.

      Also present at the scene was Carol’s neighbor Eugene Nolt, who

Officer Nipper knew to be a first responder with the fire company. Because

Nolt is of smaller stature than Officer Nipper, Nolt climbed in through the

unlocked window and went to the front door, which he opened for Officer

Nipper. Upon entering, Office Nipper announced the presence of police and

emergency medical personnel. He received no response.

      Office Nipper searched the kitchen, the dining room and a bedroom

later identified as Carol’s. He then moved on to a bedroom later identified

as Brill’s, where he saw rolling papers, a rolling machine and other assorted

paraphernalia, and a quart size Mason jar containing marijuana. He opened

a closet that had a chair in front of it, and found two glass jars on a shelf

containing what appeared to be marijuana. He then checked the bathroom

through which Nolt had entered. Having not found anyone on the first floor,

he proceeded to the second floor, where he again found no one.

      When Officer Nipper returned to the first floor, he met Nolt, who told

him there was something in the basement he needed to see. Officer Nipper

went into the basement where he found three potted marijuana plants

surrounded by a makeshift curtain.

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     Satisfied that no one was in the house, Officer Nipper confiscated the

marijuana and paraphernalia, and left the house, leaving behind his business

card. Carol called Officer Nipper around noon that day and came down to

the station to talk to him. After she told him that Brill grows marijuana in

the house, he asked if she would consent to a search of the house. She then

signed a voluntary search form.

     During the search, Carol showed him bags of marijuana in the drawer

of a cupboard in the living room. In the bar area of the basement, she also

pointed out a key on a keychain made of a clear plastic box with what

appeared to be a marijuana cigarette inside it. Office Nipper left the house

with these items.

     Brill later contacted Officer Nipper, and he agreed to have Officer

Nipper come back and use the key to search a locked area of the residence.

When Brill opened the locked room, Office Nipper saw equipment and

paraphernalia used to cultivate marijuana. Brill was subsequently charged

with possession with intent to deliver, possession of a controlled substance

and possession of drug paraphernalia.

     The trial court held a suppression hearing on May 10, 2013, and by

opinion and order dated July 3, 2013, it held that all items seized from the

house were admissible except for the items Officer Nipper found in Brill’s

bedroom closet.

     On October 3, 2013, following a stipulated bench trial, the court found

Brill guilty of the aforementioned offenses and imposed an aggregate

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sentence of two years’ probation, a $300.00 fine, costs and mandatory DNA

sampling.

      Brill filed a timely appeal in which he raises the following issues for our

review:

      1. Whether the lower court erred when it found the police had
         objectively reasonable grounds to effectuate a warrantless
         entry of [Brill’s] residence based on a perceived medical
         emergency?

      2. Whether the lower court erred when it found the search of
         Brill’s residence did not unlawfully expand in nature and scope
         beyond the initial warrantless entry’s medical emergency-
         based necessity, specifically, when an officer searched [Brill’s]
         basement after explicitly being informed that there was no
         longer a basis to conclude a medical emergency existed?

Appellant’s Brief, at viii.

      Our 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 pf the record
      as a whole. Where the suppression court’s factual findings are
      supported by the record, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.
      Where, as here, 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 our plenary
      review.




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Commonwealth v. Farnan, 55 A.3d 113, 115 (Pa. Super. 2012) (citation

omitted).

      The basic principles underlying our decision in this matter have been

summarized by the Pennsylvania Supreme Court as follows:

      Warrantless entries or searches are per se unreasonable under
      our federal and state Constitutions, albeit subject to certain
      delineated exceptions. One such exception exists when there is
      both probable cause and exigent circumstances sufficient to
      excuse obtaining a warrant. Commonwealth v. Wright, 961
      A.2d 119, 137 (Pa. 2008).         The U.S. Supreme Court has
      recognized that the “Fourth Amendment does not bar police
      officers from making warrantless entries and searches when they
      reasonably believe that a person within is in need of immediate
      aid.” Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57
      L.Ed.2d 290 (1978). See also Commonwealth v. Miller, 724
      A.2d 895, 900 (Pa. 1999) (limited number of circumstances will
      excuse police from compliance with Fourth Amendment warrant
      and probable cause requirements; one such circumstance occurs
      when police reasonably believe that someone within residence is
      in need of immediate aid); Commonwealth v. Norris, 446 A.2d
      246, 248 (Pa. 1982) (warrantless entry into residence may be
      permitted, inter alia, “when the officers may in good faith believe
      that they or someone within are in peril of bodily harm.”);
      accord Commonwealth v. Galvin, 985 A.2d 783, 795–96 (Pa.
      2009).

Commonwealth v. Davido, 106 A.3d 611, 622 (Pa. 2014).

      In Brigham City v. Stuart, 457 U.S. 398 (2006), the Supreme Court

held law enforcement officers “may enter a home without a warrant to

render emergency assistance to an injured occupant or to protect an

occupant from imminent injury.” Id. at 403. “Officers do not need ironclad

proof of a likely serious, life-threatening injury to invoke the emergency aid

exception.” Michigan v. Fisher, 588 U.S. 45, 49 (2009) (internal quotation



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omitted). The test is not what the officer “believed, but whether there was

an objectively reasonable basis for believing that medical assistance was

needed, or persons were in danger.” Id. (citations and quotation omitted).

It is error for a court “to replace that objective inquiry into appearances with

its hindsight determination that there was in fact no emergency.” Id.

      In Commonwealth v. Maxwell, 477 A.2d 1309 (Pa. 1984), citing

Mincey, supra and Norris, supra, our Supreme Court reiterated that in a

life-threatening emergency, it is proper for police to make a warrantless

search of a residence.

      In Miller, supra, the trial court denied a defense motion to suppress

evidence from a search of a house that the police entered after receiving

information from a relative that the residents might require help. On appeal,

our Supreme Court affirmed, noting:

      This was not a case in which the police created their own
      exigency and acted upon it; rather the police acted in response
      to the urging of Miller’s family and based upon a reasonable
      belief that the Millers were inside and in need of assistance.
      Hence, the trial court’s finding of exigent circumstances is
      supported by the record.

Miller, 724 A.2d at 900.

      In the instant matter, as in Miller, the search of the house came in

response to a report by a concerned family member who was unable to

contact a resident. Here, Baumer told police that she was unable to contact

her sister, whose car was at the residence.       In addition, she expressed

concern that her sister had been suffering from fainting spells recently.


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Further, this was not a case where the police caused the exigency or took

advantage of a relative’s concerns to gain entry to a house for the purpose

of finding a suspect or evidence of a crime therein.

       From the cases cited herein, we glean that where police officers acting

in good faith reasonably believe that an individual may be in need of medical

assistance, an exception to the warrant requirement exists. Such was the

case here, where Officer Nipper acted on information from Baumer that she

was unable to reach her sister Carol by phone, Carol’s car was parked in

front of the house but no one answered the door, and Carol had “a recent

medical issue with her fainting unexpectedly.”      N.T. Suppression Hearing,

5/10/13, at 5. Based on an objective inquiry into appearances, rather than

hindsight, Officer Nipper acted in good faith on a reasonable belief that

someone in the house needed medical assistance.           See Fisher, supra.

Accordingly, the trial court did not err by finding that the officer’s entry into

the home was permissible.

       Having determined that the entry into the house was lawful, the trial

court concluded that almost all of the contraband that Officer Nipper seized

was proper under the plain view exception to the Fourth Amendment

warrant requirement.4


____________________________________________


4
 The trial court determined that Officer Nipper improperly opened a two-foot
by two-foot closet in front of which a chair had been placed. Accordingly, it
suppressed the marijuana found inside the closet.



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      We apply the following test to determine whether a search falls within

the plain view exception:

      For the exception to be present, initially, the officer must not
      have violated the Fourth Amendment in arriving at the place
      from which the evidence could be plainly viewed. Moreover, two
      additional conditions must be satisfied to justify the warrantless
      seizure. First, the incriminating character of the item must be
      immediately apparent. Also, the officer must have a lawful right
      of access to the object itself.

Commonwealth v. Turner, 982 A.2d 90, 92 (Pa. Super. 2009) (quotations

and citations omitted).

      As a preliminary matter, we have already determined that Officer

Nipper did not violate the Fourth Amendment when he entered the house.

We agree with the trial court that the incriminating nature of the marijuana

and paraphernalia were clear to the officer, who testified that he is familiar

with what marijuana looks life. N.T. Suppression Hearing, 5/10/13, at 5-6.

      Officer Nipper testified that in an attempt to find Carol, he searched

the downstairs of the house (the kitchen, the dining room, Carol’s bedroom,

Brill’s bedroom and the bathroom).     Because his presence in those rooms

was lawful, he properly seized items in plain view.

      Officer Nipper then proceeded upstairs where additional bedrooms

were located.     When he returned downstairs, Nolt told him there was

something he needed to see in the basement. As the trial court notes, “Nolt

never specified if he had found Mrs. Brill’s body.”      Trial Court Opinion,

12/26/13, at 4.    Officer Nipper went into the basement for a legitimate



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purpose, and it was reasonable for him to look behind the curtain where he

discovered the three marijuana plants.

     The trial court did not err or abuse its discretion in holding that Officer

Nipper’s entry into the home without a warrant was appropriate under the

circumstances. Because Officer Nipper was legitimately in Brill’s house, the

seizure of contraband that was in plain view was permitted under Turner,

supra.

     Judgment of sentence affirmed.

     Judge Musmanno joins the majority.

     Judge Wecht files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2015




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