J-A02027-19

                               2019 PA Super 115


 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TIMOTHY MARTIN DUKE                     :
                                         :
                   Appellant             :   No. 1293 MDA 2018

         Appeal from the Judgment of Sentence November 22, 2016
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0007563-2015

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY DUBOW, J.:                               FILED APRIL 12, 2019

     Appellant, Timothy Martin Duke, appeals from the Judgment of

Sentence entered in the York County Court of Common Pleas on November

22, 2016. He challenges the trial court’s denial of his Suppression Motion,

averring that the search of his garage was an illegal warrantless search and

any evidence obtained thereafter was “fruit of the poisonous tree.”     After

careful review, we agree. We, thus, vacate Appellant’s Judgment of Sentence.

     The facts and procedural history are as follows. On October 23, 2015,

Pennsylvania State Troopers Joshua Koach, Kyle Yeager, and Alan Krall went

to Appellant’s home at 4724 Glatfelter Road in Seven Valleys, York County, in
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an effort to locate Appellant’s son, Brandon.1 The troopers did not have a

warrant to search Appellant’s property.2

       Appellant was standing at the end of his driveway holding his small dog

when the troopers arrived. Appellant informed the troopers that Brandon was

incarcerated in Lancaster County Prison and, thus, not on the premises.3 N.T.

Suppression, 6/29/16, at 12-13.

       Trooper Krall then asked Appellant for permission to look through

Appellant’s house to confirm that Brandon was not there. Id. at 13, 28, 51.

Appellant denied Trooper Krall’s request to search.        Appellant, who was

holding his dog, then retreated up his driveway toward his garage. Id. at 29,

51, 55.


____________________________________________


1 The troopers were acting at the behest of troopers from the Lancaster County
barracks who earlier that day had attempted to execute a New York state-
issued arrest warrant for Brandon at an address in Lancaster County. While
at the address listed on the New York state warrant as Brandon’s last known
address, the troopers received a tip that Brandon resided with Appellant in
York County. Troopers Koach, Yeager, and Krall proceeded to Appellant’s
residence in search of Brandon, without a copy of the New York-issued arrest
warrant or any other warrant.

2See Trial Ct. Op., 2/23/17, at 5 (discussing the Commonwealth’s stipulation
at Appellant’s non-jury trial that “the[ troopers] would have testified that they
had made a warrantless entry into the attached garage[.]”).
3Brandon had been incarcerated in Lancaster County Prison since September
11, 2015, where he was serving a six-month sentence. The troopers did not
make any effort to verify Appellant’s report that Brandon was incarcerated
until after they returned to the station. N.T. Suppression at 14, 27-28, 50.




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        Notwithstanding Appellant’s denial of consent to the troopers’ request

to search, Troopers Koach and Yeager followed Appellant up his driveway

towards his attached two-car garage. Appellant did not make any threats or

move towards the troopers, and the troopers did not instruct Appellant to stop

walking towards the garage. Id. at 30-31.4

        Still without Appellant’s consent to be on his property, the troopers went

further onto Appellant’s property, following him while he walked towards his

garage. The troopers then observed inside the garage a compound bow and

arrow, a crossbow, and a long gun or rifle. They also smelled marijuana. Id.

at 14-15, 31-32.        The troopers then entered the garage, again without

Appellant’s consent, and found five or six marijuana plants drying in

Appellant’s garage. Id. at 15-16, 35-36.

        Based on this discovery, the troopers arrested Appellant.           They

subsequently obtained a search warrant for Appellant’s home and found

additional marijuana plants. The Commonwealth charged Appellant with one

count of Manufacturing with Intent to Deliver, 35 P.S. § 780-113(a)(30).

        On January 15, 2016, Appellant filed an Omnibus Pretrial Motion seeking

to suppress physical evidence that the state troopers obtained from

Appellant’s property and statements that Appellant made to the troopers.

Appellant argued that the troopers conducted an illegal warrantless search of


____________________________________________


4   The garage door on the right side was closed and on the left side was open.



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Appellant’s garage and that the evidence they collected was the result of that

illegal search. Appellant also sought the suppression of any statements he

made to police prior to the issuance of Miranda5 warnings.

        On June 29, 2016, the trial court held a hearing on Appellant’s Motion

to Suppress.        Troopers Koach and Yeager testified on behalf of the

Commonwealth. They testified that they suspected that Appellant had lied

about Brandon not being inside and had followed Appellant up his driveway

because they were unsure of his intentions and wanted to make sure he did

not go for a weapon. Id. at 15, 30, 32, 52. Trooper Koach also testified that

Appellant “indicated there is no way we are getting to his house.” Id. at 29.

Trooper Koach also admitted that it was possible that Appellant had asked the

troopers to leave his property. Id.

        Appellant testified on his own behalf and offered the testimony of

Trooper Krall. The trial court credited the testimony of the Troopers Koach

and Yeager over Appellant’s, and denied Appellant’s Motion that same day.

Relevantly, the trial court concluded that exigent circumstances, namely

“officer safety,” justified the troopers’ warrantless incursion into Appellant’s

garage. Trial Ct. Op., 2/23/17, at 5.

        On November 22, 2016, Appellant proceeded to a stipulated non-jury

trial and the court found him guilty of the above offense.           The court

immediately sentenced Appellant to a term of 3 years’ probation.

____________________________________________


5   Miranda v. Arizona, 384 U.S. 436 (1966).

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       Appellant did not file a Post-Sentence Motion, but did timely appeal. On

October 24, 2017, this Court affirmed Appellant’s Judgment of Sentence. See

Commonwealth v. Timothy Martin Duke, No. 2093 MDA 2016 (Pa. Super.

filed Oct. 24, 2017) (unpublished memorandum).            Following its review,

however, the Pennsylvania Supreme Court vacated this Court’s decision and

remanded to the trial court for reconsideration in light of the Supreme Court’s

decision in Commonwealth v. Romero, 183 A.3d 364 (Pa. 2018) (plurality).6

       Pursuant to the Supreme Court’s directive, the trial court ordered the

parties to brief the issues raised in Appellant’s Motion to Suppress in light of

the Romero decision.             On July 16, 2018, both Appellant and the

Commonwealth complied with the court’s Order.

       Following its consideration of the parties’ arguments and the holding in

Romero, on July 17, 2018, the trial court again denied Appellant’s Motion to
____________________________________________


6 In Romero, the Pennsylvania Supreme Court considered whether an arrest
warrant alone provides the necessary Fourth Amendment protection to permit
an officer to enter a residence of a third-party to effectuate an arrest. It held
that “[i]f entry into a residence is necessary to search for [an individual named
on an arrest warrant], then the warrant must reflect a magisterial
determination of probable cause to search that residence, regardless of
whether the warrant is styled as an ‘arrest warrant’ or a ‘search warrant.’”
Romero, 183 A.3d at 403. The lead Opinion “determined that the proper
standard for determining whether a suspect lives at a particular residence
could not be anything less than probable cause.” Commonwealth v. Boyd
Chisholm, 198 A.3d 407, 414 (Pa. Super. 2018) (citing Romero, 183 A.3d
at 394). In sum, Romero held that “police officers may enter the home of
the subject of an arrest warrant to effectuate the arrest, but they must obtain
a valid search warrant before entering the home of a third party.” Romero,
183 A.3d at 389.




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Suppress. The trial court concluded that “because [it] found that [t]roopers

entered [Appellant’s] garage for officer safety concerns as opposed to

specifically searching for the target of the arrest warrant in [Appellant’s]

garage, Romero does not apply to this matter.”7 Trial Ct. Op., 9/4/18, at 12.

       Appellant timely filed the instant appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

       Appellant raises the following issue on appeal:

       Whether the searches and seizures conducted by the [t]roopers
       on Appellant’s property without valid search warrants violated the
       Fourth Amendment and Article I, Section 8 of the Pennsylvania
       Constitution.

Appellant’s Brief at 4.

       Appellant challenges the trial court’s denial of his Motion to Suppress.

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

whether the record supports the court’s factual findings and whether the legal

conclusions drawn from those facts are correct.           Commonwealth v.

Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations omitted).               In

conducting this review, we consider “only the evidence of the prosecution and

so much of the evidence of the defense as remains uncontradicted when read

in the context of the record as a whole.” Id. We are bound by the facts as

found by the suppression court, so long as they are supported by the record.
____________________________________________


7 Given that the parties do not dispute that troopers in the instant case
conducted the search of Appellant’s garage without a valid search warrant,
and that the troopers did not have an arrest warrant for Brandon when they
arrived on Appellant’s property, we agree with the trial court’s conclusion that
the holding in Romero is inapplicable herein.

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J-A02027-19



Id. We “may reverse only if the legal conclusions drawn therefrom are in

error.” Id.

      “It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given to their testimony.

The suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citation omitted).

      “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.”         Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa. Super. 2008) (citation and internal quotation

marks omitted). “[W]arrantless searches and seizures are . . . unreasonable

per se, unless conducted pursuant to a specifically established and well-

delineated exception to the warrant requirement.” Id. at 556.

      One exception to the warrant requirement is when probable cause and

exigent circumstances are present.     “Absent probable cause and exigent

circumstances, warrantless searches and seizures in a private home violate

both the Fourth Amendment [of the United States Constitution] and Article

1[,] § 8 of the Pennsylvania Constitution.” Commonwealth v. Bowmaster,

101 A.3d 789, 792 (Pa. Super. 2014) (citing Commonwealth v. Lopez, 609

A.2d 177, 178-179 (Pa.1992)).

      There are a number of factors to consider when determining whether

exigent circumstances exist, including “danger to police or other persons

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inside or outside the dwelling.”8 Commonwealth v. Lee, 972 A.2d 1, 3-4

(Pa. Super. 2009) (citation omitted). Our Supreme Court has equated the

term “exigent circumstances” with “urgent need” to underscore the “heavy

burden” on the Commonwealth to prove that prompt police action was

imperative. Commonwealth v. Williams, 396 A.2d 1177, 1179 (Pa. 1979).

The Commonwealth must show by clear and convincing evidence that the

circumstances surrounding the opportunity to search were truly exigent. Lee,

supra at 4. “Whether exigent circumstances exist depends on an examination

of all of the surrounding circumstances in a particular case.” Commonwealth

v. Flowers, 735 A.2d 115, 119 (Pa. Super. 1999) (citation and internal

quotation marks omitted).

       Additionally, “police cannot rely upon exigent circumstances to justify a

warrantless entry where the exigency derives from their own actions.”

Commonwealth v. Demshock, 854 A.2d 553, 557 (Pa. Super. 2004).

       In considering Appellant’s issue, the suppression court found as follows:

       In the driveway of the residence, Trooper Yeager and Trooper
       Koach spoke with the Appellant and told him they were serving an
       arrest warrant, and the Appellant told them that the subject of the
       arrest warrant was his son, who was incarcerated at that time.
____________________________________________


8  Factors a court commonly considers in determining whether exigent
circumstances exist are: “(1) the gravity of the offense; (2) whether the
suspect is reasonably believed to be armed; (3) whether there is above and
beyond 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 was peaceable; and (7) the time of
entry[.] Commonwealth v. Lee, 972 A.2d 1, 3-4 (Pa. Super. 2009) (quoting
Commonwealth v. Roland, 637 A.2d 26, 270-71 (Pa. 1994).

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J-A02027-19


      According to Trooper Koach, Trooper Krall then asked the
      Appellant about looking through the house to see if the subject
      was there, and Appellant did not want them near the house.

      Then, Appellant began walking away toward his two-car garage,
      which was attached to the residence. One of the two garage doors
      was open. They followed Appellant as he walked back to the
      garage because his demeanor suggested someone was
      inside the house, because they did not know his intentions
      or if he was violent, and because they wanted to make sure
      that he did not go for a weapon. While all of the officers were
      on the driveway, Troopers Koach and Yeager saw a compound
      bow and arrow, a crossbow, and a long gun or rifle in the garage
      since the garage door was open. As they got closer to the garage,
      the officers smelled marijuana. When Appellant was halfway
      inside the garage, Trooper Koach told Appellant to stop and not to
      move toward the gun.

Trial Ct. Op., 9/14/18, at 3-4 (emphasis added).

      The trial court further noted that “[t]he officers were aware that

[Appellant] had a compound bow and arrow, a crossbow, and a long gun or

rifle in the garage because the garage door was open.” Id. The court credited

the troopers’ testimony, concluding that they followed Appellant when he

began walking towards his garage because “they were concerned that

[Appellant] was going for the weapons.” Id. Thus, the suppression court

concluded that the circumstances of Appellant’s retreat toward his garage

gave rise to the troopers’ fear for their safety, and justified the warrantless

search of Appellant’s garage. Id. at 11.

      Following our review of the record, we conclude that the trial court’s

factual findings, as set forth above, are supported by the record. We, further

conclude, however, that the trial court erred in its application of those facts to




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the law because the “exigent circumstances” were not based on facts from

which to infer that Appellant intended to harm the troopers.

      The testimony at the suppression hearing established that after

Appellant denied the troopers consent to search his premises, he began to

walk up his driveway to his garage. Appellant was holding his small dog and

did not threaten the troopers, retreat in haste, or make any movement

towards the troopers. The troopers followed Appellant merely because they

“did not know his intentions or if he was violent, and because they wanted to

make sure that he did not go for a weapon.” Trial Ct. Op., 9/14/18, at 3-4.

      We start our analysis with the proposition that once Appellant denied

the troopers his consent to search his property, by remaining on and searching

his property, the troopers were violating Appellant’s Fourth Amendment

rights. Bowmaster, 101 A.3d at 792. Since the troopers did not have a

search warrant, they could only remain on and search Appellant’s property if

there were exigent circumstances. Id. In this case, the trial court concluded

that the troopers had the right to remain on and search Appellant’s property

because of the exigency of officer safety. We disagree.

      The trial court’s conclusion that the troopers faced the exigency of officer

safety assumes that, because the troopers did not know Appellant’s intentions

or if he were violent, Appellant intended to harm them.         Thus, the court

concluded that Appellant created an exigency that permitted the troopers to

remain on Appellant’s property.       This lack of knowledge of Appellant’s

intentions, however, without more, is insufficient to create an exigency that

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J-A02027-19



Appellant intended to harm the troopers. The troopers must observe some

conduct or action on the part of Appellant from which they could reasonably

infer that Appellant intended to harm them. There is no such conduct or action

in this case.

      Additionally, the undisputed facts lead to a contrary result.        After

Appellant told the troopers to leave his property, Appellant walked away. It

is not reasonable to infer from Appellant’s retreat that Appellant was intending

to harm the troopers.

      The trial court’s other basis for finding exigency was the troopers’ desire

to ensure that Appellant did not go for a weapon. This reasoning is similarly

flawed. It assumes that because Appellant did not have a weapon, Appellant

was retreating to obtain one. The problem, however, with this analysis, is

that the troopers had no basis upon which to make this assumption. Appellant

simply retreated from the troopers, carrying a small dog. He did not act in

any manner from which it was reasonable for the troopers to assume that

Appellant was walking away from the troopers to obtain a weapon and

threaten their safety.

      In sum, the trial court erred because there were no facts to support an

inference that Appellant challenged the troopers’ safety and, thus, no exigency

that permitted the troopers to remain, and, in fact, encroach further onto

Appellant’s premises after he told them to leave. Thus, the troopers violated

Appellant’s Fourth Amendment rights once they failed to leave Appellant’s




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premises after he told them to leave. Any evidence obtained after Appellant

instructed the troopers to leave his premises must, therefore, be suppressed.

     Order reversed. Judgment of Sentence vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/12/2019




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