J-S02045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANTHONY BELL                             :
                                          :
                    Appellant             :   No. 3055 EDA 2016

         Appeal from the Judgment of Sentence September 6, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0009324-2014


BEFORE:     BOWES, J., NICHOLS, J., and RANSOM*, J.

CONCURRING MEMORANDUM BY RANSOM, J.:                   FILED JUNE 28, 2018

      Although I agree with the majority that Appellant’s judgment of

sentence should be affirmed, I disagree with the majority’s analysis in many

respects.   First, it is improper to reach the question of whether exigent

circumstances existed without first establishing that a defendant had a

reasonable expectation of privacy in the area being searched. Second, the

question of whether this Appellant had a reasonable expectation of privacy in

the location being searched – i.e., his unlocked, outdoor mailbox -- was

repeatedly broached by the parties, and, thus, the majority’s failure to address

it is in error. Third, I conclude that Appellant had no reasonable expectation

of privacy in his unsecured, outdoor mailbox, and, thus, the question of

whether law enforcement needed a warrant or an exception to the warrant

requirement, such as exigent circumstances becomes moot. Finally, assuming

(but not conceding) that Appellant did have a reasonable expectation of

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S02045-18



privacy in his mailbox, the facts of this case do not constitute exigent

circumstances.

   Reasonable Expectation of Privacy Must Be Established Before
      Question of Exigent Circumstances Can be Considered

      The constitutional protections against unreasonable searches and

seizures extend to one’s person, house, writings, and effects and to those

zones or areas in which a person has a reasonable or justified “expectation of

privacy.” Commonwealth v. Viall, 890 A.2d 419, 421-23 (Pa. Super. 2005).

If there is no reasonable expectation of privacy, then the search and seizure

will not be deemed “unreasonable” and thus unconstitutional, even when

probable cause is lacking or a warrant was not obtained. Commonwealth v.

Edwards, 874 A.2d 1192, 1195 (Pa. Super. 2005).

      As the Commonwealth itself suggested in its brief, Commonwealth’s

Brief at 6-7, the question of whether exigent circumstances existed cannot be

considered until after a reasonable expectation of has been established.

Commonwealth v. Peterson, 636 A.2d 615, 618 (Pa. 1993).

The Parties Sufficiently Broached the Question of Whether Appellant
Had a Reasonable Expectation of Privacy in His Unsecured, Outdoor
                               Mailbox

      While I agree with the majority that Commonwealth v. Enimpah, 106

A.3d 695 (Pa. 2014), is controlling, I diverge from the majority in both its

interpretation and application of this case.   The majority states that “the

Commonwealth generally bears the initial burden of placing at issue the




                                    -2-
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defendant’s lack of a reasonable expectation of privacy.” Majority Mem. at 1

(citing Enimpah, 106 A.3d at 702).

        However, according to Enimpah, 106 A.2d at 701, what the

Commonwealth bears in the context of a motion to suppress evidence is the

initial burden of production1 – i.e., the Commonwealth bears the initial

burden of producing evidence of a defendant’s lack of a reasonable

expectation of privacy – not of “plac[ing] Appellant’s expectation of privacy in

the mailbox at issue.” Majority Mem. at 1.

        The “court may, indeed, treat the defendant’s privacy interest as a

‘threshold’ or ‘preliminary’ matter.” Enimpah, 106 A.2d at 701-02. “[I]f the

evidence of the Commonwealth, the party with the burden of production,

shows the defendant lacked such a privacy interest,” the Commonwealth

“need prove no more.”           Id. at 701-02.     “As it relates to the parties’

presentation of evidence, our cases and the Rules of Criminal Procedure make

clear that the Commonwealth has the burden of production, to give the court

evidence allowing that conclusion.” Id. at 702.

        Here, Appellant placed his reasonable expectation of privacy at issue

during the suppression hearing in September 2016, when Defense Counsel

stated:     “[T]o me, the question is:         Does a person have a reasonable

expectation of privacy in their identifiable mailbox?”       Notes of Testimony




____________________________________________


1   This burden of production is distinct from the burden of persuasion.

                                           -3-
J-S02045-18



(N. T.), 9/6/16, at 38-39; see also id. at 5, 43-46 (discussion of reasonable

expectation of privacy).

       The Commonwealth was therefore compelled to present evidence in

support of its position that Appellant’s constitutional rights were not violated.2

See Enimpah, 106 A.3d at 703.                  Here, the evidence presented by the

Commonwealth was that a police officer opened the lid of and looked inside

an outdoor mailbox that had no lock, that was not otherwise secured, and that

was labelled with the home address given to the officer by Appellant. N. T.,

9/6/16, at 9-14, 23, 25, 29, 31-33; Trial Court Opinion (TCO), 5/1/17, at 3.

       As the Commonwealth produced some evidence of Appellant’s lack of a

reasonable expectation of privacy, Enimpah, 106 A.3d at 701, our first

consideration therefore must be whether the Commonwealth presented

sufficient evidence to satisfy it burden of production to show that Appellant

had no reasonable expectation of privacy in his mailbox, which was not locked

and was easily subject to being opened by anyone who was interested in its




____________________________________________


2 The Commonwealth renews the issue of Appellant’s reasonable expectation
of privacy in its brief to this Court by asserting that Officer Jean’s “minimally
invasive step” of “looking inside [Appellant]’s unlocked mailbox . . . did not
infringe [Appellant’s] constitutional rights.” Commonwealth’s Brief at 6.
In the alternative, the Commonwealth argues that, “[t]o the extent the policy
infringed any privacy interest defendant had in the unlocked mailbox, by doing
no more than a postal officer would have done on a daily basis, the police
reasonably sought . . . to protect the residents of the neighborhood by locating
[Appellant]’s gun.” Id. at 6 & 7; see also id. at 11-12.



                                           -4-
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contents.3 Id. at 702 (“in terms of the court’s review, it need go no further if

it finds” no proof of “a reasonable expectation of privacy”).

    Appellant Did Not Have a Reasonable Expectation of Privacy In His
                       Unsecured, Outdoor Mailbox

       I have uncovered no Pennsylvania case law on this issue. I thus believe

that this appeal is a case of first impression for our Pennsylvania courts.

However, the question of whether an individual has a reasonable expectation

of privacy in his or her own mailbox has been considered by other jurisdictions.

“Although we are not bound by those decisions,” “we may use decisions from

other jurisdictions for guidance to the degree we find them useful and not

incompatible with Pennsylvania law.” Newell v. Montana W., Inc., 154 A.3d

819, 823 & n.6 (Pa. Super. 2017) (citation and internal quotation marks

omitted). Upon my review, it is clear that a majority of jurisdictions that have

considered this question have held that a person has no reasonable

expectation of privacy in an unlocked, accessible mailbox. United States v.

Stokes, 829 F.3d 47 (1st Cir. 2016); United States v. Hinton, 222 F.3d 664

(9th Cir. 2000); United States v. Osunegbu, 822 F.2d 472 (5th Cir. 1987);

United States v. Lewis, 738 F.2d 916 (8th Cir. 1984); State v. Champion,

594 N.W.2d 526 (Minn. Ct. App. 1999); Gabriel v. State, 290 S.W.3d 426

(Tex. Ct. App. 2009); see Parker v. State, 112 So.2d 493 (Ala. Ct. App.


____________________________________________


3I note that I would limit my analysis to outdoor, unlocked mailboxes. I would
not extend my analysis to address whether a defendant would have a
reasonable expectation of privacy in an indoor or locked mailbox.

                                           -5-
J-S02045-18



1959); contra People v. Lilly, 211 A.D.2d 428 (N.Y. App. Div. 1995); but

see Commonwealth v. Garcia, 612 N.E.2d 674 (Mass. App. Ct. 1993).

        The Minnesota Court of Appeals wrote in State v. Champion, 594

N.W.2d 526, 529 (Minn. Ct. App. 1999), that “not only is it unreasonable for

an occupant to expect protection of his or her mailbox from outside intrusion,

but protection from such intrusion is also not a societal expectation.” The

Minnesota Court of Appeals relied upon three federal statutes controlling the

mail:    18 U.S.C. § 1701, prohibiting knowing or willful obstruction of the

passage of mail; 18 U.S.C. § 1705, stating that any person who willfully or

maliciously breaks open a mailbox or defaces or destroys any mail will be fined

or imprisoned for not more than three years; and 18 U.S.C. § 1725, imposing

a fine on any individual who deposits mailable matter into a mailbox with

intent to avoid postage. Based upon these three statutes – but particularly

Section 1701 – the Minnesota Court of Appeals observed that “it is a violation

of federal law to obstruct the passage of mail by using a mailbox for purposes

unrelated to the delivery of U.S. mail.” Champion, 594 N.W.2d at 529. The

Minnesota Court of Appeals hence concluded that, since Champion knew that

the mailbox would be accessed by government officials delivering mail but

took no precaution to secure the mailbox when depositing contraband – in his

case, drugs -- he had no reasonable expectation of privacy in the mailbox,

and any search of the mailbox was proper. Id. at 530.

        Analogously, here, Appellant knew that a mailbox could be accessed by

government officials delivering mail but took no precaution to secure his

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J-S02045-18



mailbox when he hid his firearm inside. Following the analysis of Champion,

it is unreasonable for Appellant to expect protection of his mailbox from

outside intrusion, he had no reasonable expectation of privacy in his mailbox,

and the search of his mailbox was proper. Id. at 529-30.4

       Turning to the federal courts, I note that, in United States v. Lewis,

738 F.2d 916, 918-19 & n.2 (8th Cir. 1984), the Eighth Circuit considered

whether the appellant, James Lewis, had a legitimate expectation of privacy

in his unlocked mailbox that was accessible to the public after police had

opened the mailbox without a warrant. After receiving a report that a credit

card was being used fraudulently,



____________________________________________


4 In Parker v. State, 112 So.2d 493 (Ala. Ct. App. 1959), the appellant was
accused of possessing prohibited liquors in a county where alcohol was
prohibited. Specifically, a deputy found two pints of whiskey in the appellant’s
mailbox. Id. at 494. The Court of Appeals of Alabama stated: “We do not
consider the mailbox as being located within the curtilage” of the appellant’s
“dwelling house.” Id. However, the appellant’s mailbox was located across a
rural public road from his dwelling, not immediately in front of his home. Id.
The Court of Appeals did not clarify whether it believed that a mailbox is never
part of the curtilage of a house or if that appellant’s circumstances were
distinct, due to the unusual location of his mailbox on the opposite side of a
public road from his house. See id. at 493-94. If a mailbox were never
curtilage, then its owner would not be entitled to constitutional protection from
warrantless searches of it. See Commonwealth v. Brian Johnson, 68 A.3d
930, 935 n.3 (Pa. Super. 2013) (“Our courts have extended the constitutional
protection of the Fourth Amendment and Article 1, § 8 of the Pennsylvania
Constitution to the curtilage of a person’s home.” (citation and internal
brackets omitted)); Commonwealth v. Simmen, 58 A.3d 811, 815 (Pa.
Super. 2012) (“Curtilage is entitled to constitutional protection from
unreasonable searches and seizures as a place where the occupants have a
reasonable expectation of privacy that society is prepared to accept.” (citation
omitted)).

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J-S02045-18


       police discovered that some of the merchandise being purchased
       with this credit card was being delivered to a mailbox at 8342
       Swartz Road, Kansas City, Kansas. Detective William C. Moore of
       the Kansas City, Missouri Police Department drove there and
       found a mailbox mounted in a two-gallon can filed with concrete,
       lying on the ground in a ditch, and in a state of disrepair. . . .
       Detective Moore then peered into the box to attempt to determine
       when mail was being picked up. On October 29, 1981, he opened
       the mailbox and found a Jackson County property assessment bill
       addressed to a David E. Woods.

Id. at 918. Detective Moore returned the bill to the mailbox. Id. Police then

commenced surveillance on the mailbox and observed Lewis picking up and

repairing the mailbox. Id. at 918, 921. After his arrest, “Lewis moved to

suppress the evidence concerning the warrantless opening of the David Woods

mailbox, additionally claiming that all subsequent search warrants, and

therefore all evidence at trial, were fruit of this allegedly illegal search.” Id.

at 919. The Eighth Circuit “ha[d] no difficulty in concluding that Lewis lacked

a legitimate expectation of privacy in the mailbox[,]” because “[h]e had every

expectation that governmental officials would regularly open the box to deliver

mail.” Id. at 919 n.2. Applying that analysis to the current case, the search

of Appellant’s unlocked mailbox that was accessible to the public was also

valid, because he would expect that government officials would regularly open

the box to deliver mail.5



____________________________________________


5 Albeit that, unlike in the current case, Lewis’s mailbox was located in a rural
area and bore a false name, “David Woods,” I find those distinctions to be
inconsequential, because the crux of the Eighth Circuit’s reasoning was that
Lewis lacked a legitimate expectation of privacy in an object that government
officials would regularly open to deliver mail. Lewis, 738 F.2d at 919 n.2.

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      Another useful case is United States v. Osunegbu, 822 F.2d 472, 474

(5th Cir. 1987), in which the Fifth Circuit upheld a warrantless search of a

private post office box by postal inspectors. In its analysis, the Fifth Circuit

noted that postal employees would often have to look at and move mail into

and out of mailboxes.     Id. at 480.    For this reason, there is a minimal

expectation of privacy as to the contents placed in a mailbox. Id.; see also

Gabriel v. State, 290 S.W.3d 426, 432-33 (Tex. Ct. App. 2009) (applied the

reasoning of Osunegbu to a postal box rented in a private facility, an UPS

Store, and held that the trial court did not err in denying appellant’s motion

to suppress evidence seized therefrom by a detective in the county sheriff’s

office).

      In what was a case of first impression, the First Circuit, in United States

v. Stokes, 829 F.3d 47, 52 (1st Cir. 2016), also considered “whether a

defendant can hold a reasonable expectation of privacy in a rented mailbox[.]”

      From 2008 to 2012, defendant-appellant Darren Stokes sent
      fraudulent invoices to thousands of businesses. Each invoice
      appeared to be sent by a legitimate trade association and directed
      the business to send membership dues to one of three addresses
      in Massachusetts where, unbeknownst to the business, Stokes
      received mail. Postal inspectors intercepted mailings to these
      addresses. After criminal charges were leveled against Stokes in
      the United States District Court for the District of Massachusetts,
      he moved to suppress the mailings as the product of an
      unreasonable search under the Fourth Amendment. The district
      court denied the motion to suppress[.]




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Id. at 49.6 The First Circuit affirmed, holding that Stokes did not have “a

legitimate expectation of privacy in the . . . P.O. Box.” Id. at 52.

       Although Osunegbu and Stokes involved post office boxes and not a

private mailbox, I find their reasoning – i.e., that postal employees regularly

look at the inside of post office boxes so no warrant is needed to search one

– applies equally to a private mailbox, which postal employees also look inside

regularly.    For this reason, a private mailbox would also have a minimal

expectation of privacy, and a warrant would not be required for other

government officials, such as police officers, to search it.

       Another case that is similar, albeit not directly on point, is United

States v. Hinton, 222 F.3d 664 (9th Cir. 2000), in which the Ninth Circuit

considered whether an individual has an expectation of privacy in a parcel

locker. In Hinton, the appellant rented a post office box, which was closed

and locked from the outside but open and in plain view of postal employees.

Id. at 667. When the appellant received a package that was too large for his

post office box, employees placed the package in a parcel locker and placed a

key for the locker in his post office box. Id. The parcel locker was locked to

the public, but a door at the back of the locker opened to employees without

a key. Id. Postal employees could thus remove packages from their side

without using a key. Id. at 667-68.



____________________________________________


6“Stokes pled guilty to 8 counts of wire fraud under 18 U.S.C. § 1343 and 7
counts of mail fraud under 18 U.S.C. § 1341.” Stokes, 829 F.3d at 49.

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      The Ninth Circuit held that there “is no reasonable expectation of privacy

in a parcel locker.” Hinton, 222 F.3d at 675. The court explained: “The

postal employees would have the right to move the packages whether the

parcel locker has a back door facing the employee area or not, because the

right to move the packages exists irrespective of a locker’s enclosure.” Id. at

676. Since the contents can be accessed by postal workers, “one may not

claim an objectively reasonable expectation of privacy in a parcel locker.” Id.

Although the current matter involves a mailbox at a residence and not a post

office box nor a parcel locker inside a post office, the access of postal workers

to their contents remains the same. Therefore, following the logic of Hinton,

id., in the instant case, there would also be no reasonable expectation of

privacy.

      One case that arguably could be considered an exception to the

conclusion of the majority of jurisdictions that found no reasonable

expectation of privacy in a mailbox is Commonwealth v. Garcia, 612 N.E.2d

674 (Mass. App. Ct. 1993). In Garcia, the Massachusetts Appeals Court held

that a warrantless search of a mailbox was unjustified, because the defendant

had a reasonable expectation of privacy in a mailbox, even when he was not

a tenant in that building. However, I believe that Garcia is distinguishable,

because the mailbox was inside an apartment building and was locked. Id.

at 676, 678-79. In the current appeal, Appellant’s mailbox was outside and

was unlocked. Thus, I conclude that Garcia is not persuasive.




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       The only jurisdiction that has considered this issue and held that a

defendant has a reasonable expectation of privacy in his own mailbox is New

York. The opinion rending this holding, People v. Lilly, 211 A.D.2d 428, 428

(N.Y. App. Div. 1995), states in its entirety:

       Order, Supreme Court, New York County (Nicholas Figueroa, J.),
       entered on or about June 28, 1994, which granted defendant’s
       motion to suppress physical evidence and a postarrest statement,
       unanimously affirmed.

       Defendant’s legitimate expectation of privacy in the mailbox (see,
       People v Whitfield, 81 NY2d 904; People v Wesley, 73 NY2d
       351), and his resulting standing, were established by his
       assertion, in response to the officer’s question, that the mailbox
       was his and that he resided in the corresponding apartment.

       The officer’s contention that he feared for his safety lacked any
       objective basis (cf., People v Chin, 192 AD2d 413, lv denied 81
       NY2d 1071; People v Marine, 142 AD2d 368, 370-371), as the
       court properly determined that defendant was seized, i.e., that
       there was a “significant interruption [of his] liberty of movement”,
       when the officer, while standing in defendant’s path and without
       first asking him to move, placed his hand on defendant’s left
       shoulder to brush him aside in order to observe the contents of
       the mailbox (see, People v Bora, 83 NY2d 531, 534-535) and
       was unwarranted under the circumstances.

None of the cases cited therein – Whitfield, Wesley, Chin, Marine, and

Bora – concerns the search of a mailbox.7

____________________________________________


7 The New York Supreme Court, Appellate Division, upheld the validity of the
search of a mailbox in two subsequent memorandum decisions.
In People v. Merchant, 258 A.D.2d 478, 478 (N.Y. App. Div. 1999)
(memorandum), “the defendant challenge[d] the search of a mailbox which
was not located in his residence and in which he claimed no possessory
interest,” even though “keys to the mailbox were found in his possession.”
Not only do the facts of Merchant distinguish it from the current matter, but



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       I find that New York’s analysis of this issue is not an in-depth as in the

other jurisdictions that have considered this question.          I am wary of

contradicting the majority of jurisdictions on the basis of the ruling of a

minority of one.

       Accordingly, based upon Champion and Lewis and in consideration of

Osunegbu, Gabriel, Stokes, and Hinton, I conclude that a person has no

reasonable expectation of privacy in his unlocked, outdoor mailbox. 8 Here,



____________________________________________


the New York Supreme Court, Appellate Division, concluded that the
defendant had no standing to challenge the search of the mailbox and never
reached the question of whether the defendant had a reasonable expectation
of privacy.
The New York Supreme Court, Appellate Division, did reach that question in
People v. Scott, 273 A.D.2d 76, 76 (N.Y. App. Div. 2000) (memorandum
decision), while patrolling the lobby of a building in a housing project, two
police officers saw the defendant smoking marijuana and arrested him. Upon
searching the defendant, the officers discovered a set of keys. Id. The
defendant denied “any personal connection to the building and any connection
between the keys and the building.” Id. An officer tried the keys in the
building’s mailboxes, and, upon opening one of the boxes, discovered cocaine
and PCP. Id. The trial court granted the defendant’s motion to suppress the
drugs, but the Supreme Court, Appellate Division, held that “[m]ere
possession of the mailbox key” did not invest the defendant “with a reasonable
expectation of privacy in the mailbox.” Id.
8 However, an individual has a privacy interest in the contents of his or her

mail. Stokes, 829 F.3d at 52 (citing United States v. Jacobsen, 466 U.S.
109 (1984); Ex parte Jackson, 98 U.S. 727 (1877); United States v.
Barnette, 375 F.3d 10 (1st Cir. 2004), judgment vacated on other
grounds by 543 U.S. 1181 (2005)) (“Letters and other sealed packages are
in the general class of effects in which the public at large has a legitimate
expectation of privacy. Yet a defendant has no reasonable expectation of
privacy in the outside of mail . . .” (internal quotation marks omitted)). Thus,
the holding of this opinion does not permit law enforcement to open mail, such
as sealed envelopes or packages, without a warrant or a clearly recognized
exception to the warrant requirement.

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the Commonwealth gave the trial court evidence that police had searched

Appellant’s unlocked, outdoor mailbox, N. T., 9/6/16, at 9-14, 23, 25, 29, 31-

33; TCO at 3; it thus fulfilled its burden of production by providing sufficient

evidence for the court to determine whether Appellant had a reasonable

expectation of privacy.    Enimpah, 106 A.3d at 702.         As no reasonable

expectation of privacy exists in an unlocked, outdoor mailbox and as the

Commonwealth produced evidence that the search at issue was of an

unlocked, outdoor mailbox, id., Appellant had no privacy interest in the area

that was searched. Hence, the search that lead to the discovery of Appellant’s

firearm cannot be deemed “unreasonable” and thus unconstitutional.         See

Edwards, 874 A.2d at 1195.

      To be clear, I would conclude that no warrant was required to search

Appellant’s unlocked, outdoor mailbox, and, for that reason, I thus concur that

Appellant’s motion to suppress the firearm seized from Appellant’s unlocked,

outdoor mailbox was properly denied. See Freeman, 150 A.3d at 34–35. As

I would hold that Appellant had no reasonable expectation of privacy in his

own unlocked, outdoor mailbox, I do not need to reach the issue of whether

exigent circumstances existed to justify a warrantless search. Peterson, 636

A.2d at 618.

                    No Exigent Circumstances Existed

      The trial court, however, assumed that Appellant had “reasonable

expectations of privacy in his own mailbox,” TCO at 7, without further analysis



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and without any citation to case law. Consequently, the trial court denied

Appellant’s motion to suppress based upon exigent circumstances. Id. at 6-

7 (quoting Commonwealth v. Stewart, 740 A.2d 712, 717-18 (Pa. Super.

1999) (defining exigent circumstances)). The majority also is “of the view

that the trial court properly denied Appellant’s motion to suppress based on

exigent circumstances.”    Majority Mem. at 3 (footnote omitted) (citations

omitted).

      During the suppression hearing, Defense Counsel argued that police

could have had an officer secure Appellant’s mailbox, and, “[i]f they thought

there was probable cause or reason to believe it, go get a warrant.” N. T.,

9/6/16, at 42. In his brief to this Court, Appellant also argued:

      The Appellant also argues that there were no exigent
      circumstances to open up the mailbox without a warrant. The
      Commonwealth argued that there was a school nearby.

      However, it was a closed mailbox which was secured by a police
      officer. The police officer testified that he did not search an
      unsecured car and did not appear to be concerned.

Appellant’s Brief at 8.

      As the trial court and the majority both rely solely on the theory that

exigent circumstances existed and as Appellant preserved this issue,

I therefore feel compelled to explain why I would disagree with the trial court’s

and the majority’s rationale. TCO at 6-7; Majority Mem. at 3. “This Court is

not bound by the rationale of the trial court, and we may affirm the trial court

on any basis.”   Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa.

Super. 2013) (citing In re Jacobs, 15 A.3d 509, 509 n.1 (Pa. Super. 2011)).

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     Exigent circumstances are an exception to the warrant requirement,

excusing the need for a warrant where “prompt police action is imperative” –

i.e., when the delay in obtaining a search warrant would result in personal

injury or the loss of evidence.   Commonwealth v. Hakim Johnson, 969

A.2d 565, 569 (Pa. Super. 2009) (citation omitted); accord Schmerber v.

California, 384 U.S. 757 (1966).         The classic examples of exigent

circumstances are where someone is yelling for help or where a defendant is

flushing drugs down the toilet. See, e.g., Commonwealth v. Potts, 73 A.3d

1275, 1275, 1280 (Pa. Super. 2013) (when police arrived, they heard

screaming and yelling from appellant’s apartment; their warrantless entry and

search was proper, as one exception to the warrant requirement “is when the

police reasonably believe that someone within a residence is in need of

immediate aid” (quoting Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa.

2009)); United States v. Fiasche, 520 F.3d 694 (7th Cir. 2008) (after seeing

police, defendant yelled “hold on,” followed by “flushing sounds”; it was

reasonable to conclude that drugs would have been flushed down the toilet in

the time it would take to obtain a search warrant).

     Here, there was no chance that the firearm, located in Appellant’s

mailbox, would have been destroyed by Appellant or that Appellant would

have caused someone personal injury with the firearm. Appellant was with

Officer Robin Song while Officer Joel Jean performed the search, so Appellant

could not have destroyed the evidence. N. T., 9/6/16, at 25, 27. The firearm

also would not have quickly been damaged by the elements from inside a

                                    - 16 -
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mailbox or otherwise lost. There is no suggestion that Appellant would flee,

and, even if he did, he was not in the vicinity of the firearm, where he could

grab it easily. Id. at 12-14, 24, 29-31.

        As for Officer Jean’s and the trial court’s concern that a child from the

local daycare may have found the firearm, if Officer Jean had probable cause

that the firearm was in Appellant’s mailbox, he could have secured the mailbox

while another officer obtained a warrant.        See, e.g., Commonwealth v.

English, 839 A.2d 1136, 1142 (Pa. Super. 2003) (concluding warrantless

seizure of marijuana plants not justified, even though police claimed plants

could be destroyed before search warrant could be procured, where officers

could have secured the scene while a different officer obtained a warrant). As

noted above, Appellant had raised this argument during the suppression

hearing and in his brief to this Court. N. T., 9/6/16, at 42; Appellant’s Brief

at 8.

        Even taking into account the most comprehensive list of factors that a

court may consider when assessing the presence of exigent circumstances,

which was cited by the majority, Majority Mem. at 3-4 n.4, those factors would

weigh against finding exigent circumstances in the current action. That list of

factors is:

        (1) the gravity of the offense; (2) whether the suspect is
        reasonably believed to be armed; (3) whether there is a clear
        showing of probable cause; (4) whether there is a strong reason
        to believe that the suspect is within the premises being entered;
        (5) whether there is a likelihood that the suspect will escape if not
        swiftly apprehended; (6) whether the entry is peaceable; (7) the
        timing of the entry; (8) whether there is hot pursuit of a fleeing

                                       - 17 -
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      felon; (9) whether there is a likelihood that evidence will be
      destroyed if police take the time to obtain a warrant; and (10)
      whether there is a danger to police or other persons inside or
      outside of the dwelling to require immediate and swift action.

Commonwealth v. Brian Johnson, 68 A.3d 930, 937 (Pa. Super. 2013). In

the current appeal, these factors count against finding exigent circumstances:

at the time of Officer Jean’s search, Appellant was not armed, obviously could

not be inside the “premises” of the mailbox, did not have a likelihood of

escape, was not fleeing, could not destroy evidence, and was not a danger to

others.

      In conclusion, there was no emergency that would allow for the finding

of exigent circumstances. See Birchfield v. North Dakota, 136 S. Ct. 2160,

2173 (2016) (“The exigent circumstances exception allows a warrantless

search when an emergency leaves police insufficient time to seek a warrant.”);

Commonwealth v. Gatlos, 76 A.3d 44, 56 (Pa. Super. 2013) (“exigent

circumstances may provide an exception to the warrant requirement in what

are   essentially   emergency    situations   created   by    those   exigent

circumstances”); see also Commonwealth v. Ritcher, 791 A.2d 1181 (Pa.

Super. 2002) (en banc).

      “[A]ll decisions made pursuant to the exigent circumstances exception

must be made cautiously, for it is an exception which by its nature can very

easily swallow the rule unless applied in only restricted circumstances.”

Commonwealth v. Bostick, 958 A.2d 543, 557 (Pa. Super. 2008) (quoting

English, 839 A.2d at 1141).



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        Neither the requisite danger nor potential for destruction of evidence

existed that would qualify as such restricted circumstances requiring prompt

police action. See Hakim Johnson, 969 A.2d at 569; Bostick, 958 A.2d at

557.9

        For the reasons explained above, I would affirm the judgment of

sentence but on a different basis than both the trial court and the majority.

Thus, I concur.




____________________________________________


9 The facts of this case also do not merit the recently-recognized “community
caretaker” exception. Commonwealth v. Livingstone, 174 A.3d 609 (Pa.
2017). For this exception, the police have to be rendering aid or assistance
and cannot be engaging in crime-solving activity. Id. at 627-28 & n.12, 635.
The current action fails on both accounts: the police were not helping anyone,
and they were specifically engaged in criminal investigation by searching for
a weapon.

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