J-A14040-14


                             2014 PA Super 199

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RODNEY SCOTT BOWMASTER,

                        Appellant                   No. 1925 MDA 2013


        Appeal from the Judgment of Sentence of October 7, 2013
            In the Court of Common Pleas of Clinton County
          Criminal Division at No(s): CP-18-CR-0000483-2012


BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,* JJ.

CONCURRING OPINION BY OLSON, J.:              FILED SEPTEMBER 17, 2014

     I am constrained to agree that the trial court erred in failing to

suppress the evidence introduced against Appellant.       I write separately,

however, as I reach this conclusion for reasons that differ from those

expressed by the learned Majority.

     The Majority offers the following analysis to support its conclusion that




su

in this manner, the Majority then holds that Pennsylvania State Troopers

William Ritrosky (Trooper Ritrosky) and Andrew Mincer (Trooper Mincer)

impermissibly intruded upon the protec




*Retired Senior Judge assigned to the Superior Court.
J-A14040-14



the Commonwealth failed to establish exigent circumstances that justified



       In the initial component of its analysis, the Majority reasons that




and a closed fence surrounded the area.1 See Majority Opinion at 5-6. The

Majority then treats the activities of both troopers on the same footing,



property. Id. The record is clear, however, that when the officers entered

the property, both Trooper Ritrosky and Trooper Mincer initially approached



Trooper Ritrosky remained at the entrance and knocked on the door,



____________________________________________


1



that there was a fence around Ap
is not clear from the record that the gate was closed at the time that the
troopers arrived. In fact, when specifically asked whether the gate was
closed, Trooper Mincer stated that he could not recall. N.T., 8/8/13 at 27. I


the area around the front entrance of the structure. See
Exhibits 1, 2 and 3, 8
gate is opened. I acknowledge that these photos were taken sometime after
the incident in question.      However, when shown the photos, Trooper
Ritrosky testified that, except for the growth of weeds around the trailer, the
photo showed the trailer basically the same way as it was on the date in
question. N.T., 8/8/13 at 11.



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J-A14040-14



                                                       ard and stopped in front

of the second window down from the doorway of the trailer. Id.

     As the Majority points out, our cases have extended the constitutional

protections of the Fourth Amendment and Article 1, § 8 of the Pennsylvania

Constitution to the c                                     See Majority Opinion

at 5; see also Commonwealth v. Johnson, 68 A.3d 930, 936 n.3 (Pa.

Super. 2013) (citation omitted).     To assess what is properly deemed

                                                                             al

reasonably may expect that an area immediately adjacent to the home will

remain private.    Curtilage is entitled to constitutional protection from

unreasonable searches and seizures as a place where the occupants have a

reasonable expectation of privacy                                          Id.

(internal quotation marks and citations omitted).

     I am not convinced, as a matter of law, that the erection of signs and

the presence of a fence can alone transform a front entryway and porch area

into the protected confines of the curtilage of a property. Our cases have

consistently considered many factors -- not simply the placement of signs or

the erection of a fence -- to determine whether an individual reasonably may

expect privacy within an area immediately adjacent to his home. See e.g.

Commonwealth v. Simmen, 58 A.3d 811, 815-816 (Pa. Super. 2012)

(driveway in front of house leading up to internal garage did not constitute

curtilage where it was primary access route to front door and there were no

signs warning against trespass or       fences      precluding street access);

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J-A14040-14



Commonwealth v. Gibbs, 981 A.2d 274, 280 (Pa. Super. 2009) (front

porch did not constitute curtilage where it was used by deliverymen and

visitors to access apartment, it was contiguous to public sidewalk, and there

was no gate or sign precluding access by members of the public). I must

concede that our curtilage analyses in these cases considered the presence

(or absence) of signs and fences.      Nevertheless, our reasoning therein

turned more so upon the reasonable expectations of the occupants, which

we gleaned from the likelihood that the public would require access through



proximity and orientation of the challenged space to public pathways and

thoroughfares. The pattern that emerges in these cases is that there is a

lower expectation of privacy in frontal street-oriented spaces required for

entryway access than in areas located at the rear of a property. Compare

Simmen, 58 A.3d at 816 (defendant did not have a reasonable expectation

of privacy in front driveway that served as main pathway to front door) and

Gibbs, 981 A.2d at 280 (front porch did not qualify as curtilage where it

functioned as principal entryway into residence) with Commonwealth v.

Lee, 972 A.2d 1, 4 (Pa. Super. 2009) (recognizing that defen

reasonable expectation of privacy in area behind his home required

Commonwealth to establish both probable cause and exigent circumstances

to justify warrantless search).



suppression hearing, including the testimony of the witnesses and the

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J-A14040-14



exhibits entered into the record.          Based upon its review, the trial court



members of the public would have required access through this segment of
                                                            2
                                                                Trial Court Opinion,

8/19/13, at 3-4 ¶ 12. In essence, the trial court held that curtilage may not



surrounding a home such that the residence becomes an island unto itself.




                                               3




Trooper Ritroskey were required to enter a yard area through a gate. This

area is clearly open to the public, as anyone desiring to make a delivery and



                                                      Id. at 3-4 ¶ 12.

       In sum, I do not believe that our case law compels the conclusion that

Trooper Ritrosky and Trooper Mincer entered the constitutionally protected
____________________________________________


2
 The photographs introduced into evidence at the suppression hearing show
                                                          through the gate
and past the posted signage. See
3



into the trailer did not constitute the curtilage of the property.        See Trial
Court Opinion, 8/19/13, at 8-9.



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J-A14040-14




public might do. See Florida v. Jardines, 133 S.Ct.

police officer not armed with a warrant may approach a home in hopes of

speaking to its occupants, because that is no more than any private citizen



Commonwealth v. Gibson, 63

have the power to knock on the doors of the citizens of this Commonwealth



                                                                       onto



that Trooper Mincer impermissibly encroached upon the protected curtilage



front door in an easterly direction, took up a position two windows down



point. In contrast to the common entryway, this area of the property was

                                                                        the

public would not need to cross this portion of the property in order to gain




property.     Since Trooper Mincer lacked probable cause and exigent

circumstances to support his movement towards this part of the curtilage




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J-A14040-14



observations as the fruit of an illegal search.           In turn, since the

Common




residence was unlawful.4         Hence, I agree that Appellant was entitled to

suppression of the evidence offered against him.


____________________________________________


4
  If Trooper Mincer had observed contraband from a lawful vantage point, I
would not hesitate to conclude that he possessed both probable cause and
exigent circum
establishes that, when Trooper Mincer looked through the window, he saw a
rifle and large knives. N.T., 8/8/13 at 18, 19. He also saw small plastic
bags that, in his experience, resembled heroin packets. Id. Moreover, a
window fan blew into his face from which Trooper Mincer smelled a strong
chemical odor that, in his experience, was from synthetic drugs. Id. at 18.
Most importantly, Topper Mincer saw a person other than Appellant in the
room who fled to the rear of the trailer when Trooper Ritrosky knocked at
the front door. Id. at 15. When Appellant answered the front door, Officer
Mincer asked Appellant whether anyone else was in the trailer and Appellant
                 Id. at 16. Trooper Mincer knew that was not true as he had
seen the other person flee to the rear of the trailer. In my view, all of these
factors established probable cause and exigent circumstances to do a
protective sweep of the trailer. See Johnson, 68 A.3d at 944-946 (police
officers who restrained defendant and conducted protective sweep of his
trailer without a warrant acted with probable cause and exigent
circumstances when, in response to call about drug-related activity, officers
encountered an occupant of d


evidence if defendant were permitted to re-enter trailer). Additionally, I am
not bothered by the hour at which the troopers arrived at the trailer. The
troopers were investigating a claim that a gun was stolen in a burglary and,
at 2:10 a.m. on the date in question, they received information from a
witness that Appellant had received the stolen gun in satisfaction of a debt.

(Footnote Continued Next Page)


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J-A14040-14




                       _______________________
(Footnote Continued)

where they saw lights on in the trailer and could see that a television was
on. Id. at 6, 14. Based on this information, the troopers believed that
people were awake in the trailer. Id. at 13. Trooper Ritrosky then knocked
at the front door.    These facts are very different from the facts in
Commonwealth v. Berkheimer, 57 A.3d 171 (Pa. Super. 2012) (en banc),
the case upon which the learned Majority relies. Majority Opinion at 7-8. In
Berkheimer, based on a tip that a person wanted on a probation detainer

11:30 p.m. and noticed that the rooms were all dark and the occupants

front door causing the door to open. The trooper than entered the darkened
home where he saw two people sleeping. Id. at 174-175. Clearly, the facts
of the instant case are markedly different from the situation in Berkheimer.
Considering the totality of the circumstances, I believe that it would have
                                                                    if Trooper
Mincer had not ent
obtain the information necessary to establish probable cause and exigent
circumstances.



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