J-S09035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TAARIQ T. PAUL                             :
                                               :
                       Appellant               :   No. 790 EDA 2019

        Appeal from the Judgment of Sentence Entered February 6, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0002057-2018


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                FILED APRIL 06, 2020

        Appellant, Taariq T. Paul, appeals from the aggregate judgment of

sentence of 369 days to 23 months of confinement followed by three years of

probation, which was imposed after his conviction at a stipulated bench trial

for manufacture, delivery, or possession with intent to manufacture or to

deliver a controlled substance (“PWID”).1 Appellant contends that the trial

court erred by denying his motion to suppress. After careful review, we affirm.

        The facts presented during the suppression hearings are as follows. On

February 3, 2018, “shortly after 5:00 in the afternoon[,]” Sergeant

Timothy Walters and Officer Matthew Meitzler had just finished responding to

an unrelated call on Keim Street in Pottstown, Montgomery County, when they

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   35 P.S. § 780-113(a)(30).
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began to smell “this strong odor of . . . unburnt marijuana[.]” N.T., 2/5/2019,

at 7-8, 11. The odor became stronger as they walked towards Appellant’s

home, and they determined that it was emanating from his house. Id. at 9.

They knocked on the door.            Id. at 12; N.T., 2/6/2019, at 34-35.

Approximately 60 to 90 seconds passed before Appellant answered the door.

N.T., 2/6/2019, at 35. The officers asked for Appellant’s “permission to search

the residence[,]” which he denied.        N.T., 2/5/2019, at 14.        The officers

“advised him that at this point [that          they] were going to secure his

residence[.]” Id. When later asked the reason for securing the residence,

Sergeant Walters explained that they were “[m]aking sure that what [they]

suspected was in the house was not being destroyed . . . that evidence was

not being tampered with or destroyed.” Id. at 15.

       While Officer Meitzler left the home to obtain a warrant, Sergeant

Walters waited with Appellant and his girlfriend in the living room of the home.

Id. at 14-15. Appellant then “requested to go upstairs and get his wallet”; a

third officer who had arrived at the scene “for officer safety purposes[,]”

Officer Brandon Unruh, accompanied Appellant upstairs. Id. at 15, 42; N.T.,

2/6/2019, at 18, 21.         While upstairs, Officer Unruh observed two large

vacuum-sealed bags of marijuana on the floor of the master bedroom, in plain

view, and called Officer Meitzler on the telephone to report his observation,

so that Officer Meitzler could include this information in his affidavit of

probable cause for the search warrant. Id. at 18. Officer Meitzler “returned

with   the   warrant   and    he   and   another   officer   searched   the   home.

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Approximately 10 [pounds] of marijuana, drug paraphernalia, and a loaded

.22 caliber pistol were recovered from the search.” Trial Court Opinion, dated

July 2, 2019, at 3 (citing N.T., 2/6/2019, at 16-17).

        [Appellant] was charged with numerous violations of the
        Controlled Substance, Drug, Device, and Cosmetic Act.[2] On
        August 21, 2018, [Appellant] filed a suppression motion alleging
        that the police created an exigency to justify a warrantless entry
        and search of his home. Following a two day hearing, th[e trial
        c]ourt denied the motion. [Appellant] proceeded immediately to
        a stipulated bench trial and was convicted of one count of [PWID]
        and sentenced[.] . . . On March 8, 2019, he filed a timely notice
        of appeal. By Order of March 11, 2019 th[e trial c]ourt directed
        him to file a concise statement pursuant to Pa. R.A.P. 1925 (b).
        He has since complied with that directive.

Id.3
        Appellant presents the following issue for our review:

        Did the trial [c]ourt err in denying [Appellant]’s motion to
        suppress, in which [Appellant] contended that the warrantless
        entry into the home was made pursuant to exigent circumstances
        that were created by actions of the police?

Appellant’s Brief at 1.

        In reviewing the denial of a suppression motion, our role is to
        determine 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
        of 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
____________________________________________


2   35 P.S. §§ 780-101 to 780-144.
3   The trial court entered its opinion on July 2, 2019.

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      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.

Commonwealth v. Yim, 195 A.3d 922, 926 (Pa. Super. 2018) (citations and

internal brackets omitted). Our scope of review from a suppression ruling is

limited to the evidentiary record created at the suppression hearing.

Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018).

      In the current action, Appellant argues that “a police-created exigency

[was] utilized to gain forcible and warrantless entry into [his] residence” and,

hence, that “[a]ll of the evidence obtained after the knock on the door,

including that obtained subsequent to issuance of the search warrant, should

be suppressed.” Appellant’s Brief at 5, 8.

      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



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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).

      Various factors need to be taken into account to assess the
      presence of exigent circumstances; for example: (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 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)

(citation and internal brackets omitted).

      In the current appeal, the officers clearly had probable cause as soon as

they determined that the odor of marijuana was emanating from Appellant’s

home. N.T., 2/5/2019, at 8-9; see Brian Johnson, 68 A.3d at 937 (“whether

there is a clear showing of probable cause”). The officers knocked on the door

at about 5:00 p.m. to inquire about the smell of marijuana and waited a

minute or more for Appellant to open the door, N.T., 2/5/2019, at 11-12; N.T.,

2/6/2019, at 34-35, and thereby “entered the home in the least intrusive way

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possible[.]”      Trial   Court   Opinion,   dated   July   2,    2019,   at   5;   see

Brian Johnson, 68 A.3d at 937 (“whether the entry is peaceable” and “the

timing of the entry”). The officers entered the home “to secure” it “to prevent

the destruction of evidence” and, to a lesser extent, for purposes of “officer

safety[.]”     Trial Court Opinion, dated July 2, 2019, at 5-6; see also N.T.,

2/5/2019, at 14-15 (Sergeant Walters testified that the purpose of entry was

to prevent the destruction of evidence and an additional officer was called to

the home for officer safety); Brian Johnson, 68 A.3d at 937 (“whether there

is a likelihood that evidence will be destroyed if police take the time to obtain

a warrant” and “whether there is a danger to police or other persons inside or

outside   of     the   dwelling   to   require   immediate       and   swift   action”);

Hakim Johnson, 969 A.2d at 569 (exigent circumstances excusing the need

for a warrant include when the delay in obtaining a search warrant would

result in loss of evidence); see also Schmerber, 384 U.S. 757; Fiasche, 520

F.3d 694 (potential destruction of drugs creates exigent circumstances).

      Accordingly, the clear showing of probable cause, the peaceable entry

at a reasonable hour, and concerns over the loss of evidence and officer safety

combine to establish exigent circumstances and, consequently, that the

officers did not need a warrant prior to entering Appellant’s home.                 See

Hakim Johnson, 969 A.2d at 569; see also Schmerber, 384 U.S. 757.

      Based on the foregoing, the trial court did not err by denying Appellant’s

motion to suppress. Ergo, Appellant is not entitled to relief.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2020




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