J-A01017-15

                                2015 PA Super 81

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
             v.                           :
                                          :
SAMANTHA FLEET,                           :
                                          :
                    Appellant             : No. 29 WDA 2014

         Appeal from the Judgment of Sentence November 15, 2013,
                  Court of Common Pleas, Allegheny County,
             Criminal Division at No. CP-02-CR-0008782-2013

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

OPINION BY DONOHUE, J.:                             FILED APRIL 16, 2015

       Samantha Fleet (“Fleet”) appeals from the November 15, 2013

judgment of sentence entered by the Allegheny County Court of Common

Pleas following her conviction of possession of a controlled substance.1

Specifically, Fleet challenges the trial court’s denial of her motion to

suppress, as the fruit of an unlawful search, the heroin and needle found

during the execution by police of a warrant for emergency mental health

treatment (“302 warrant”).      Upon review, we conclude that because the

Commonwealth failed to satisfy its burden of proof regarding the propriety of

the issuance of the 302 warrant, the trial court erred by denying

suppression.      As Fleet’s conviction was based solely upon the evidence




1
    35 P.S. § 780-113(a)(16).
J-A01017-15


obtained during the execution of the 302 warrant, we vacate the judgment

of sentence.

      The trial court aptly summarized the facts and procedural history of

this case as follows:

               On December 14, 2012, Crafton Borough Police
            Officer Stephanie Newcomer was on duty between
            3:00 p.m. and 11:00 p.m. (T.T.) at 4. On that day,
            Jennifer Fleet, [Fleet]’s mother, entered the Crafton
            Borough Police station regarding text messages
            [Fleet] sent stating that [Fleet] wanted to kill herself.
            (T.T.) at 5. Jennifer Fleet showed the text messages
            to Officer Newcomer. (T.T.) at 5. Jennifer Fleet also
            told Officer Newcomer that she had conversations
            with [Fleet] wherein [Fleet] stated that she was
            depressed and wanted to end things. (T.T.) at 5-6.
            Upon hearing this information, Officer Newcomer
            telephoned Rita Agostinelli at the Allegheny County
            Mental Health Department (the “ACMHD”) and
            advised her of the situation. (T.T.) at 6, 11.

                Telephoning the ACMHD is an established
            procedure in the Crafton Borough Police Department
            and one with which Officer Newcomer was familiar.
            (T.T.) at 18. Officer Newcomer had encountered
            warrants and involuntary commitments under the
            Mental Health Procedures Act (“MHPA”), 50 P.S. §
            7302[,] before this incident. (T.T.) at 18. Jennifer
            Fleet stated that she would sign a [302] warrant to
            commit [Fleet]. (T.T.) at 6. Jennifer Fleet read the
            text messages to Ms. Agostinelli and went into more
            detail on the telephone. (T.T.) at 16. Ms. Agostinelli
            instructed Officer Newcomer to tell Jennifer Fleet to
            follow [Fleet] to the hospital to conclude the
            paperwork. (T.T.) at 17. At this point, Ms. Agostinelli
            gave Officer Newcomer verbal authorization over the
            phone that the [302] warrant would be filed. (T.T.)
            at 6. Ms. Agostinelli advised Officer Newcomer that
            as long as Jennifer Fleet followed the ambulance that
            would be taking [Fleet] to the hospital, she would



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          sign the paperwork that would complete the warrant
          and commitment. (T.T.) at 7. It is not the Crafton
          Police Department’s policy to require a paper
          warrant; a verbal warrant such as the one in this
          matter is sufficient. (T.T.) at 10-11. Officer
          Newcomer understood that the ACMHD would fax the
          [302] warrant to the hospital, and that the hospital
          filled out and finalized the requisite paperwork.
          (T.T.) at 11-12.

              Jennifer Fleet followed Officer Newcomer and the
          ambulance to [Fleet]’s brother’s house wherein
          [Fleet] was located. (T.T.) at 7-8, 17. [Fleet] was
          asked to come outside of her brother’s home, and
          was advised of the [302] warrant. (T.T.) at 8, 19.
          Officer Newcomer asked [Fleet] if she wanted to step
          inside, because a search was required prior to
          transportation pursuant to a warrant. (T.T.) at 8, 19.
          Per Officer Newcomer, a search of the person is
          required pursuant to a warrant in such a situation for
          the safety of the police and the ambulance crew.
          (T.T.) at 9. They went inside and Officer Newcomer
          asked [Fleet] if she had anything on her. (T.T.) at 8,
          19. [Fleet] informed Officer Newcomer that she had
          heroin on her, and handed the officer a capped
          syringe and five “stamp bags.” (T.T.) at 9. A stamp
          bag is a small square white bag with suspected
          heroin in it. (T.T.) at 9. [Fleet] had four empty stamp
          bags and one stamp bag had 0.1 grams of heroin in
          it. (T.T.) at 17-18. Laboratory results confirmed that
          the substance inside the stamp bag was heroin.
          (T.T.) at 40.

             On November 14, 2013, this [c]ourt held a
          suppression hearing on two issues prior to [Fleet]’s
          non-jury trial, also before this [c]ourt. [Fleet] argued
          that the search was illegal; that the search, if legal,
          exceeded the scope of permissible searches; and
          that the Commonwealth has a burden to show that
          they’ve complied with all the procedural safeguards
          pertaining to searches. (T.T.) at 25. This [c]ourt
          denied [Fleet]’s suppression motion. (T.T.) at 35.




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                Following that denial, this [c]ourt proceeded to a
            stipulated non-jury trial incorporating the testimony
            from the suppression hearing. (T.T.) at 37. The
            parties stipulated to the laboratory results and that
            Officer Newcomer would testify that, based on her
            training and experience, she perceived the needle to
            be drug paraphernalia used for the ingestion of
            heroin. (T.T.) at 40. In consideration of the
            testimony and stipulated evidence, this [c]ourt found
            [Fleet] guilty of the possession charge at [c]ount
            [o]ne and not guilty of the paraphernalia charge at
            [c]ount [t]wo. At [c]ount [o]ne, this [c]ourt
            sentenced [Fleet] to six months of non-reporting
            probation and a [d]rug and [a]lcohol [e]valuation.
            (T.T.) at 45.

Trial Court Opinion, 5/12/14, at 4-6.

      On November 25, 2013, Fleet filed a timely post-sentence motion

seeking reconsideration of the trial court’s denial of her suppression motion.

The trial court denied this request on December 4, 2013.       On January 2,

2014, Fleet filed her notice of appeal and now presents the following

arguments before this Court:

      I.    Whether the [t]rial [c]ourt erred in failing to grant
            Ms. Fleet’s Omnibus Pre-Trial Motion to Suppress
            Evidence when the Commonwealth failed to establish
            that the procedural safeguards and requirements of
            involuntary civil commitment were satisfied?

      II.   Assuming, arguendo, the Commonwealth established
            that the procedural safeguards and requirements of
            involuntary civil commitment were satisfied, whether
            the [t]rial [c]ourt nonetheless erred in failing to
            grant Ms. Fleet’s Omnibus Pre-Trial Motion to
            Suppress Evidence when the search of Ms. Fleet’s
            person was not supported by a search warrant, and
            no specifically established, well-delineated exception
            to the warrant requirement existed?



                                    -4-
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      III.   Assuming, arguendo, the police may conduct a
             warrantless search of a person incident to a lawful
             involuntary civil commitment, whether the [t]rial
             [c]ourt still erred in failing to grant Ms. Fleet’s
             Omnibus Pre-Trial Motion to Suppress Evidence when
             the police exceeded the permissible scope of such a
             search?

Fleet’s Brief at 4.2

      We review the trial court’s denial of a motion to suppress to determine

whether the record supports the trial court’s factual findings and whether it

reached its legal conclusions in error. Commonwealth v. Enick, 70 A.3d

843, 845 (Pa. Super. 2013), appeal denied, 85 A.3d 482 (Pa. 2014). “If the

record supports the trial court’s findings of fact, we will reverse only if the

trial court’s legal conclusions are incorrect.” Id. (citation omitted).

      Both the United States and Pennsylvania Constitutions protect citizens

from unreasonable searches and seizures. See U.S. CONST. amend. IV; PA.

CONST. art. I, § 8.    The trial court states, however, that because police

obtained the contraband while executing a 302 warrant, “the proper inquiry

is not under the criminal standards of the Fourth Amendment to the U.S.

Constitution and Article [I], Section 8 of the Pennsylvania Constitution.”

Trial Court Opinion, 5/12/14, at 7. Rather, according to the trial court, the

Commonwealth need only “establish that the procedural safeguards and



2
  Since we conclude that the Commonwealth failed to satisfy its burden of
proof with regard to the propriety of the issuance of the 302 warrant, we do
not address the remaining issues Fleet raises on appeal.


                                      -5-
J-A01017-15


requirements of involuntary civil commitment were satisfied” under the

MHPA.   Id. at 7, 11.    As the trial court found that the Commonwealth

satisfied its burden of proving that the issuance of the 302 warrant was

proper pursuant to the MHPA, it found that the evidence was not subject to

suppression. Id. at 8-10.

     Fleet asserts that the trial court’s conclusions in both respects are

erroneous. First, Fleet disagrees with the trial court’s conclusion that

involuntary civil commitments are not subject to the protections of the

Fourth Amendment and Article I, Section 8.     Fleet’s Brief at 14-18.   Fleet

further argues that the Commonwealth did not present sufficient evidence to

support a finding that the issuance of a 302 warrant was proper, as it failed

to present evidence to show that Fleet was a “clear and present danger”

under the MHPA or demonstrate compliance with the MHPA’s warrant

requirement. Id. at 21-23.

     At the outset, we find no support for the trial court’s notion that

persons subjected to involuntary civil commitments are not entitled to the

constitutional protections provided by the Fourth Amendment and Article I,

Section 8. The trial court is correct that civil commitment proceedings are

not “to be based on criminal standards and procedures.” In re J.M., 726

A.2d 1041, 1046 (Pa. 1999); see Trial Court Opinion, 5/12/14, at 7. This

relates solely to the burden of proof required at an involuntary civil

commitment proceeding, and does not mean that simply because the person



                                    -6-
J-A01017-15


is subject to a 302 warrant he or she therefore is not afforded constitutional

protection against unreasonable searches and seizures by police.             These

protections apply to all citizens, regardless of their status, when police or

other government entities are involved. See U.S. CONST. amend. IV (“The

right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.”); PA. CONST. art. I, § 8 (“The people shall

be   secure   in   their   persons,   houses,   papers   and   possessions    from

unreasonable searches and seizures, and no warrant to search any place or

to seize any person or things shall issue without describing them as nearly

as may be, nor without probable cause, supported by oath or affirmation

subscribed to by the affiant.”) (emphasis added); see also Soldal v. Cook

Cnty., Ill., 506 U.S. 56, 67 (1992) (“the [Fourth] Amendment’s protection

applies in the civil context as well [as the criminal context]”).

      It is an intrusion by the government, not the status of the citizen, that

triggers protection and inquiry into the reasonableness of the intrusion.

“The Fourth Amendment and Article I, § 8 have long been interpreted to

protect the people from unreasonable government intrusions into their

privacy.   The reasonableness of a governmental intrusion varies with the

degree of privacy legitimately expected and the nature of the governmental



                                       -7-
J-A01017-15


intrusion.”   Commonwealth. v. McCree, 924 A.2d 621, 626 (Pa. 2007)

(internal citations and quotation marks omitted).

      Once a defendant files a motion to suppress, the Commonwealth has

the burden of proving that the evidence in question was lawfully obtained

without violating the defendant’s rights. Pa.R.Crim.P. 581(H). Pursuant to

Fourth Amendment jurisprudence, there are three categories of interactions

between police and a citizen:

                  The first of these is a “mere encounter” (or
              request for information) which need not be
              supported by any level of suspicion, but carries no
              official compulsion to stop or to respond. The
              second, an “investigative detention” must be
              supported by a reasonable suspicion; it subjects a
              suspect to a stop and a period of detention, but does
              not involve such coercive conditions as to constitute
              the functional equivalent of an arrest. Finally, an
              arrest or “custodial detention” must be supported by
              probable cause.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012), appeal

denied, 50 A.3d 124 (Pa. 2012) (citation omitted).       To find an interaction

with police elevated above a mere encounter, we must determine whether

the individual was “seized” by police.      Commonwealth v. Au, 42 A.3d

1002, 1004 (Pa. 2012).

                 To guide the crucial inquiry as to whether or not a
              seizure has been effected, the United States
              Supreme Court has devised an objective test
              entailing a determination of whether, in view of all
              surrounding circumstances, a reasonable person
              would have believed that he was free to leave. In
              evaluating the circumstances, the focus is directed



                                      -8-
J-A01017-15


            toward whether, by means of physical force or show
            of authority, the citizen-subject’s movement has in
            some way been restrained. In making this
            determination, courts must apply the totality-of-the-
            circumstances approach, with no single factor
            dictating the ultimate conclusion as to whether a
            seizure has occurred.

Downey, 39 A.3d at 405 (citation omitted).

      The record in the case at bar reflects that Officer Newcomer obtained

the evidence from Fleet after the officer “advised [Fleet] of the situation with

the 302 warrant.” N.T., 11/15/13, at 8. Officer Newcomer informed Fleet

that she was going to be searched and “asked her if she had anything on

her,” at which point Fleet handed the officer the heroin and syringe. Id. at

8-9. It is clear that no reasonable person would have felt free to leave, and

that Fleet was therefore “seized” as defined above.3 See Downey, 39 A.3d

at 405.

      Fleet’s seizure occurred as a result of Officer Newcomer’s execution of

a 302 warrant and Fleet challenged the propriety of the issuance of the 302

warrant.   Therefore, the determination of whether that seizure was lawful

depends on whether the Commonwealth satisfied its burden of proving at

the suppression hearing that the procedural requirements for the issuance of

a 302 warrant pursuant to the MHPA were met.         See Commonwealth v.


3
   Our conclusion that Fleet was seized prior to Officer Newcomer obtaining
the contraband in question is important because if this had been a mere
encounter, Fleet would not be entitled to any redress, as she voluntarily
provided the contraband to Officer Newcomer upon being asked “if she had
anything on her.”


                                     -9-
J-A01017-15


Jackson, 62 A.3d 433, 438 (Pa. Super. 2013) (indicating that where

evidence is obtained during the execution of a 302 warrant and the

defendant challenges the factual basis for the issuance of the 302 warrant, it

is the Commonwealth’s burden to prove that the 302 warrant was properly

issued); see also Trial Court Opinion, 5/12/14, at 7 (recognizing that it

“must determine if the Commonwealth complied with the requirements of a

civil involuntary confinement”).

            [T]he standard for evaluating the validity of [302]
            warrants is whether reasonable grounds exist to
            believe that a person is severely mentally disabled
            and in need of immediate treatment. … Whether
            evidence is sufficient to constitute reasonable
            grounds for purposes of a [302] warrant can only be
            determined on a case by case basis. … [T]he guiding
            inquiry must be whether, when viewing the
            surrounding facts and circumstances, a reasonable
            person in the position of the applicant for a [302]
            warrant could have concluded that an individual was
            severely mentally disabled and in need of immediate
            treatment.

In re J.M., 726 A.2d at 1049; see also Jackson, 62 A.3d at 439.

      Section 7301(a) of the MHPA, governing who may be subject to

involuntary emergency examination and treatment, provides:

               Whenever a person is severely mentally disabled
            and in need of immediate treatment, he may be
            made subject to involuntary emergency examination
            and treatment. A person is severely mentally
            disabled when, as a result of mental illness, his
            capacity to exercise self-control, judgment and
            discretion in the conduct of his affairs and
            social relations or to care for his own personal




                                    - 10 -
J-A01017-15


            needs is so lessened that he poses a clear and
            present danger of harm to others or to himself.

50 P.S. § 7301(a) (emphasis added). Clear and present danger of harm to

oneself requires proof that “within the past 30 days,” one of the following

occurred:

            (i) the person has acted in such manner as to
            evidence that he would be unable, without care,
            supervision and the continued assistance of others,
            to satisfy his need for nourishment, personal or
            medical care, shelter, or self-protection and safety,
            and that there is a reasonable probability that death,
            serious bodily injury or serious physical debilitation
            would ensue within 30 days unless adequate
            treatment were afforded under this act; or

            (ii) the person has attempted suicide and that
            there is the reasonable probability of suicide
            unless adequate treatment is afforded under
            this act. For the purposes of this subsection, a
            clear and present danger may be demonstrated
            by the proof that the person has made threats
            to commit suicide and has committed acts
            which are in furtherance of the threat to
            commit suicide; or

            (iii) the person has substantially mutilated himself or
            attempted to mutilate himself substantially and that
            there is the reasonable probability of mutilation
            unless adequate treatment is afforded under this act.
            For the purposes of this subsection, a clear and
            present danger shall be established by proof that the
            person has made threats to commit mutilation and
            has committed acts which are in furtherance of the
            threat to commit mutilation.

50 P.S. § 7301(b)(2) (emphasis added).

     Only a “severely mentally disabled” person, as defined above, may be

emergently examined by a physician “upon the certification of a physician


                                    - 11 -
J-A01017-15


stating the need for such examination; or upon a warrant issued by the

county administrator authorizing such examination; or without a warrant

upon application by a physician or other authorized person who has

personally observed conduct showing the need for such examination.”

50 P.S. § 7302(a).

     The record reflects that Officer Newcomer was the only witness to

testify at the suppression hearing. Although she stated that Fleet’s mother

came to the police station and indicated that Fleet had threatened to kill

herself, the officer provided no indication of when the threats of suicide

allegedly occurred. See generally N.T., 11/15/13, at 5-7. There was also

no testimony that Fleet had previously attempted suicide or testimony that

in addition to threatening suicide, Fleet took any actions in furtherance of

her suicidal ideations. To the contrary, the record reveals no evidence that

in the thirty days prior to Fleet’s mother coming to the police station, Fleet

engaged in any of the behaviors set forth in section 7301(b)(2) such that

she would meet the definition of a person posing a clear and present danger

to herself and thus, “severely mentally disabled.” See 50 P.S. § 7301(b)(2).

     As stated above, “severely mentally disabled” is a defined term of art

in section 7301(a) of the MHPA. The only evidence of Fleet’s mental state

presented by the Commonwealth was that at some unknown time, Fleet

allegedly sent text messages to her mother indicating that she was

contemplating suicide and that she had a conversation with her mother,



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J-A01017-15


again at a time unknown, “about being depressed and wanting to end

things.”   N.T., 11/15/13, at 5-6, 14.      The Commonwealth presented no

evidence to support a finding that there were reasonable grounds to believe

that Fleet was a clear and present danger to herself, and thus “severely

mentally disabled,” as defined by the MHPA. See J.M., 726 A.2d at 1049;

50 P.S. §§ 7301(a), 7302(a). As such, the Commonwealth failed to satisfy

its burden of proving that the 302 warrant was properly issued.

      Contrary to the statement by the learned Dissent, the evidence

presented in the case at bar in support of the propriety of the issuance of

the 302 warrant was not “more compelling” than the testimony in Jackson,

wherein this Court decided the same issue as is presented in the case at bar

and found the 302 warrant was properly issued. Diss. at 5. In Jackson,

police executed a written 302 warrant issued for Jackson at his house.

Jackson, 62 A.3d at 435.         While there, the police observed drug

paraphernalia and “an active marijuana growing operation.” Id. Thereafter,

police obtained a warrant to further search the residence and seize the

contraband found. Id.

      Jackson filed a motion to suppress, asserting, inter alia, that the

seizure “was derivative of an invalid mental health warrant which the police

used to gain entry to his home.”    Id.     The trial court held a suppression

hearing, at which the following relevant testimony was provided:




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J-A01017-15


                 Tracy Semow, a mental health supervisor for
             Westmoreland Case Management and Supports,
             testified that in addition to her caseload supervision
             responsibilities, she assists individuals who have a
             family member or friend who is a threat to himself or
             others. On April 5, 2011, she met with [Jackson’s
             father] and his wife and Ms. Bates[, Jackson’s
             paramour], and all three expressed concerns about
             [Jackson]’s and Ms. Bates’[] safety. Since Ms. Bates
             was the primary witness to [Jackson]’s conduct and
             felt personally threatened, she was the designated
             applicant. Ms. Semow assisted Ms. Bates in
             completing an application for the warrant that
             subjected [Jackson] to an involuntary emergency
             examination and treatment.

                Ms. Bates averred in the application that she
             believed [Jackson] to be severely mentally disabled
             and a clear and present danger to others. She
             checked the box on the form providing:

                    Clear and present danger to others shall be
                shown by establishing that within the past 30
                days the person has inflicted or attempted to
                inflict serious bodily harm on another and that
                there is reasonable probability that such
                conduct will be repeated. A clear and present
                danger      of   harm    to  others   may    be
                demonstrated by proof that the person has
                made threats of harm and has committed acts
                in furtherance of the threat to commit
                harm[.][4]

             Application for Involuntary Emergency Examination
             and Treatment, Commonwealth Exhibit 1, at 2.

                Ms. Bates handwrote the behavior exhibited by
             [Jackson] within the past thirty days that supported
             her belief. Ms. Bates recounted that on March 21,
             2011, she and [Jackson] had an explosive argument
             over trash bags that culminated in [Jackson]


4
    See 50 P.S. § 7301(b)(1) (defining clear and present danger to others).


                                     - 14 -
J-A01017-15


          threatening “to smash [her] face in with those f–––in
          keys.” Ms. Bates also described an incident that
          occurred on April 4, 2011, the day before the
          warrant issued. Ms. Bates insisted on driving home
          from the dentist after [Jackson] had received
          novocaine. Their two children were in the rear seat
          of the vehicle. [Jackson] repeatedly yelled at her
          about her driving and started kicking the dashboard
          and punching the window to convince her that he
          should drive. When Ms. Bates declined to relinquish
          control of the car, [Jackson] told her “No you are
          going to f–––ing pull over now and let me drive!”
          When Ms. Bates refused, [Jackson] pushed his feet
          against the dashboard, which had the effect of
          pushing his seat into the infant seat located behind
          him. When Ms. Bates pointed out that the child could
          be hurt, [Jackson] put his hand on the keys in the
          ignition, threatening to remove them.

             When Ms. Bates continued to refuse to allow
          [Jackson] to drive, he began punching the window
          on the passenger side of the vehicle. He again
          insisted that she turn over the wheel, and when she
          declined, he threatened, “I will beat your face in with
          a baton until there is a big gaping hole in your
          head!”

             At that point, Ms. Bates directed the car away
          from their home, intending to go directly to the
          police station. [Jackson] noticed and became more
          violent. As Ms. Bates was entering a turn, [Jackson]
          grabbed the keys in the ignition and turned off the
          car, blocking traffic in all directions. He then jumped
          from the car and ordered her to exit the car. Ms.
          Bates restarted the car and attempted to drive it.
          [Jackson] stood in front of the car, took his baton,
          and smashed it against the passenger side window.
          At that point, Ms. Bates proceeded to the local police
          department where she filed a report of the incident.

             Ms. Semow read the application in its entirety
          over the phone to Dawn Hixon, a Westmoreland
          County mental health delegate. Based on Ms. Bates’



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J-A01017-15


           account, Ms. Hixon approved the warrant that
           permitted the police to apprehend [Jackson] and
           take him to the nearest emergency room for
           evaluation. Ms. Semow then signed the warrant. At
           the suppression hearing, Ms. Semow verified her
           signature on the 302 warrant and confirmed that the
           information contained therein was the information
           Ms. Bates transcribed in Ms. Semow’s presence.

Id. at 435-37 (footnote added; some record citations omitted).       The trial

court denied suppression.

     Following his convictions of drug-related charges, Jackson appealed to

this Court. On appeal, this Court evaluated the evidence presented by the

Commonwealth at the suppression hearing and determined that it supported

the trial court’s finding that Jackson was “severely mentally disabled,” as he

was a clear and present danger to others as defined by section 7301, and

that the 302 warrant was properly issued. Id. at 440. We thus concluded

that the police were lawfully present in Jackson’s home by virtue of the

properly procured 302 warrant; police viewed the contraband in plain view;

and the resulting issuance of a search warrant and the seizure of the drugs

and paraphernalia by police were permissible. Id.

     In Jackson, the Commonwealth provided testimony to establish that

Jackson was engaging in behaviors during the preceding thirty days that

made him a clear and present danger to others, and therefore “severely

mentally disabled” as defined by the MHPA. In the case before us, on the

other hand, the Commonwealth did not present any evidence to support a




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finding that the 302 warrant was properly procured. Although the Dissent

states, “Officer Newcomer viewed text messages from [Fleet] in which she

articulated a clear and immediate intent to kill herself,” Diss. at 5

(emphasis added), there is no support in the record for such a conclusion.

As stated hereinabove, the Commonwealth presented no evidence regarding

when Fleet allegedly sent the text messages or any specificity as to the

content of the messages.      Officer Newcomer only testified that Fleet’s

mother came to the police station and showed her text messages, allegedly

sent by Fleet at some unknown time, indicating that Fleet was contemplating

suicide and that Fleet’s mother had a conversation with Fleet, again at a

time unknown, “about being depressed and wanting to end things.”        N.T.,

11/15/13, at 5-6, 14.

     The Dissent’s alternative argument – that Officer Newcomer’s seizure

of Fleet was “reasonable” “even if the warrant was technically defective

pursuant to the procedural prerequisites of the MHPA” – is also erroneous.

See Diss. at 6-11. This was not a mere technical defect in the 302 warrant

as the Dissent suggests; this was a wholesale failure to establish that Fleet

was the proper subject of an emergency examination under the MHPA. See

50 P.S. § 7302(a) (permitting transportation of a person to a treatment

facility for emergency examination only if there are “reasonable grounds to

believe a person is severely mentally disabled and in need of immediate

treatment,” either as provided in a warrant for emergency examination or



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upon personal observation of the person’s conduct) (emphasis added). As

stated above, Officer Newman’s testimony did not establish that Fleet was

“severely mentally disabled” as defined by the MHPA or in need of immediate

treatment.    As such, the Dissent’s conclusion that the Commonwealth

established “that probable cause existed for the belief that [Fleet] was

severely mentally disabled” is unsupportable under the law.5 Diss. at 10-11.

      We agree with the Dissent that the Commonwealth need not prove

that Fleet was, in fact, “severely mentally disabled” to establish that the 302

warrant was properly issued. See Diss. at 3-4. Rather, as stated supra, the

Commonwealth had the burden of proving that there were reasonable

grounds to believe that Fleet was “severely mentally disabled” as defined by

the MHPA and in need of immediate treatment.          See J.M., 726 A.2d at

1049; 50 P.S. §§ 7301(a), 7302(a).       In finding that the Commonwealth

satisfied its burden in this regard, the Dissent wholly ignores the definition

under the MHPA of who is subject to a 302 warrant and the paucity of

evidence produced by the Commonwealth at the suppression hearing. The

Commonwealth failed to produce the text messages Fleet allegedly sent;


5
  We note that it is entirely possible that Fleet was the proper subject of a
302 warrant and lawfully committed pursuant thereto. Our decision here
does not address that question. Rather, our inquiry is simply whether the
Commonwealth satisfied its burden of proving that it lawfully obtained the
contraband in question. As the Commonwealth obtained the contraband
during the execution of a 302 warrant, and Fleet challenged the validity of
the 302 warrant in a suppression motion, pursuant to Jackson, the
Commonwealth in the case at bar had the burden of proving that the 302
warrant was properly issued. See Jackson, 62 A.3d at 438.


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failed to call any witnesses to testify regarding the content of those

messages or the information contained in the application for the 302

warrant; and failed to produce any evidence pertaining to when Fleet

allegedly sent the messages or when the conversation with her mother

“about being depressed and wanting to end things” occurred.             Stated

otherwise, the Commonwealth failed to establish that the requirements for

obtaining a 302 warrant were met.      As such, the Commonwealth failed to

satisfy its burden of proof on this predicate issue and we have no basis from

the record to conclude that Fleet was lawfully detained prior to the search.

                Where a court finds that a person was illegally
            seized before he allegedly consented to a search,
            any evidence obtained as a result of the search must
            be excluded from the evidence against the accused
            as fruit of the poisonous tree, i.e., the unlawful
            seizure, unless the prosecution can establish that the
            alleged consent was not a result of the illegal
            seizure.

Commonwealth v. Reid, 811 A.2d 530, 544-45 (Pa. 2002) (citation

omitted).

      We therefore conclude that the trial court erred by denying Fleet’s

motion to suppress the heroin and syringe recovered from her person by

Officer Newcomer and reverse that decision.         As Fleet’s conviction of

possession of a controlled substance was based entirely upon the now-

suppressed evidence, we vacate the judgment of sentence.




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      Order denying suppression reversed. Judgment of sentence vacated.

Jurisdiction relinquished.

      Ford Elliott, P.J.E. joins the Opinion.

      Allen, J. files a Dissenting Opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/16/2015




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