J-S31015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

WARREN D. ANDERSON

                            Appellant                   No. 372 MDA 2015


            Appeal from the Judgment of Sentence January 27, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003367-2013

BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY OTT, J.:                         FILED JULY 18, 2016

        I join the majority decision in this matter but write separately to note

additional reasoning supporting the decision.

        The Majority cites Commonwealth v. Romero, ___ A.3d. ___, 2016

PA Super 87 (Pa. Super. 2016) (filed 4/19/2016) for the proposition that

where the authorities1 have a reasonable belief that the subject of an arrest

warrant lives within a given premises, they can enter the home and arrest

the suspect without a search warrant.          However, that statement does not

define “reasonable belief.” I believe we should clarify the rule and follow the

guidance of the 3rd Circuit Court of Appeals in United States v. Vasquez-

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    The authorities in Romero were probation officers.
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Algarin, ___ F.3d ___, 2016 WL 1730540 (3 rd Cir.) (filed 5/2/2016) and

define reasonable belief as probable cause.2     In Vasquez-Algarin, Judge

Krause has provided a thorough history of the issue and the standard

applied as well as sound reasoning why “reasonable belief” should be

interpreted as probable cause. While I direct interested parties to the entire

decision, I quote two passages.

       Although the language of Payton and the Supreme Court's other
       Fourth Amendment decisions provides [sic] strong support for
       interpreting reasonable belief as a probable cause standard, it is
       the nature of the privacy interests at stake that solidifies our
       conclusion. Without question, the home takes pride of place in
       our constitutional jurisprudence. As the Supreme Court has
       reiterated on numerous occasions, “when it comes to the Fourth
       Amendment, the home is first among equals. At the
       Amendment's ‘very core’ stands ‘the right of a man to retreat
       into his own home and there be free from unreasonable
       governmental intrusion.’ ” Florida v. Jardines, ___ U.S. ___,
       ___, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (quoting
       Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679,
       5 L.Ed.2d 734 (1961)). Indeed, such intrusion is “the chief evil
       against which the wording of the Fourth Amendment is directed.”
       Payton, 445 U.S. at 585.

       The vaunted place of the home in our constitutional privacy
       jurisprudence was central to the Supreme Court's analysis in
____________________________________________


2
  [I]t is well-settled that this Court is not bound by the decisions of federal
courts, other than the United States Supreme Court, or the decisions of
other states' courts. We recognize that we are not bound by these cases;
however, we may use them for guidance to the degree we find them useful
and not incompatible with Pennsylvania law.

Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (citations
omitted).




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       Payton and Steagald. See, e.g., Payton, 445 U.S. at 585-90;
       Steagald, 451 U.S. at 220, 222. These cases together provide
       insight that neither case provides alone—insight that leads
       inexorably to the conclusion that the Circuit-created two-prong
       test is workable only if governed by a robust reasonableness
       standard akin to probable cause, and that anything less would
       defeat the “stringent ... protection” the home is due. United
       States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074,
       49 L.Ed.2d 1116 (1976) (private homes are “ordinarily afforded
       the most stringent Fourth Amendment protection”).

U.S. v. Vasquez-Algarin, ___ F.3d ___, at *8 -*9.3

       Additionally,

       Given this precedent and the constitutional principles at stake,
       law enforcement armed with only an arrest warrant may not
       force entry into a home based on anything less than probable
       cause to believe an arrestee resides at and is then present within
       the residence. A laxer standard would effect an end-run around
       the stringent baseline protection established in Steagald and
       render all private homes—the most sacred of Fourth Amendment
       spaces—susceptible to search by dint of mere suspicion or
       uncorroborated information and without the benefit of any
       judicial determination. Such intrusions are “the chief evil against
       which the wording of the Fourth Amendment is directed.”
       Payton, 445 U.S. at 585. We therefore join those Courts of
       Appeals that have held that reasonable belief in the Payton
       context “embodies the same standard of reasonableness
       inherent in probable cause.” Gorman, 314 F.3d at 1111; accord
       Barrera, 464 F.3d at 501.

Id. at 10.4



____________________________________________


3
  Complete interior citations are: Payton v. New York, 445 U.S. 573, 100
S.Ct. 1371, 63 L.Ed.2d 639 (1980); Steagald v. United States, 451 U.S.
204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).
4
  Complete interior citations are: United States v. Gorman, 314 F.3d 1105
(9th Cir. 2002); United States v. Barrera, 464 F.3d 496 (5th Cir. 2006).



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      In the instant matter, the record supports that the authorities, based

on information contained in the “warrant packet” and independently

developed at the scene, possessed probable cause to believe Ramos lived at

2308 Orange Street. Further, they possessed probable cause, based upon

the information that Ramos’s mode of transportation was a bicycle and a

bicycle was found at the rear of 2308 Orange Street, that he was present at

the   time   the   authorities   attempted   to   execute   the   arrest   warrant.

Accordingly, I believe that facts presented in this case meet the standard as

set forth in United States v. Vasquez-Algarin, supra.

      Judge Strassburger joins the concurring memorandum.




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