J-S14001-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
DELANO CURTIS MUNFORD,                   :
                                         :
                 Appellant               : No. 3035 EDA 2012

        Appeal from the Judgment of Sentence September 28, 2012,
                  Court of Common Pleas, Bucks County,
             Criminal Division at No. CP-09-CR-0004822-2012

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED MARCH 02, 2015

     Delano Curtis Munford (“Munford”) appeals from the judgment of

sentence entered following his conviction of possession of marijuana with the

intent to distribute (“PWID”), 35 P.S. § 780-113(a)(30). We affirm.

     On appeal, Munford challenges only the trial court’s denial of his

motion to suppress. Munford’s Brief at 5.

           Our standard of review in addressing a challenge to
           the denial of a suppression motion is limited to
           determining 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. The suppression court’s
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           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. Moreover,
           appellate courts are limited to reviewing only the
           evidence presented at the suppression hearing when
           examining a ruling on a pre-trial motion to suppress.

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014).

     The facts as found by the trial court, and supported by the evidence of

record, are as follows.   On May 30, 2012, Officer Gregory Smith of the

Bensalem Police Department went to Munford’s residence at 3110 Knights

Road to execute a warrant for Munford’s arrest for felony PWID.        N.T.,

9/28/12, at 5-6. Officer Smith, a ten-year veteran with the Bensalem Police

Department, had been a member of the narcotics unit for five years and had

served many arrest and search warrants as part of his position.    Id. at 4.

Officer Smith testified that serving arrest warrants for felony-level drug

offenses is very dangerous, often involves violent people, and a common

concern is the presence and use of deadly weapons against the police when

executing an arrest warrant. Id. at 5.

     Officer Smith approached Munford’s door with three other officers. Id.

at 6, 9. They heard “several individuals inside talking” before knocking on

the door. Id. After the officers knocked on the door, between fifteen and

thirty seconds elapsed before Munford answered the door.     Id.   From the

entrance to the apartment the officers could see Munford’s living room. Id.




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at 7. Officer Smith observed two or three other people sitting on the sofa.

Id. at 6. He and Corporal Schwartz entered the residence while one of the

remaining officers took Munford into custody. Id. The officers entered the

apartment to determine whether these people presented a threat to the

officers’ safety. Id. at 25. At that moment, another person emerged from

the bathroom, which was down a short hallway from the living room. Id. at

6.   The officers instructed this person to sit on the sofa and then, out of

concern for the officers’ safety, Officer Smith and Corporal Schwartz looked

in the bedroom (which was adjacent to the bathroom) to determine whether

anyone else was in the apartment.      Id. at 6-8.   As they looked into the

bedroom, they observed segments of marijuana cigarettes, or “roaches,” on

the nightstand. Id. at 8-9.

      Munford filed a motion to suppress arguing that the officers’ search of

his residence, and resulting seizure of the marijuana roaches, was

impermissible because they did not have a search warrant for the premises.

At the conclusion of a hearing on Munford’s motion, the trial court found that

the officers’ conduct was a permissible protective sweep incident to arrest

and that because the roaches were discovered in plain view during this

permissible action,   Munford was not entitled to suppression of the

contraband. Id. at 26.

      We find no error in this determination by the trial court. Generally, a

warrant is required for a lawful search of a premises; however, “[i]t is well-



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settled that under emergent circumstances, protective sweeps are a well-

recognized exception to the warrant requirement.” Commonwealth v.

Potts, 73 A.3d 1275, 1281 (Pa. Super. 2013), appeal denied, 83 A.3d 415

(Pa. 2013) (citation omitted).

      “A protective sweep search is a quick and limited search of the

premises, incident to an arrest, conducted to ensure the safety of the

arresting officer.   Its scope extends only to a visual inspection of those

places that may harbor a person, who may constitute a danger to the

officer.” In re J.E., 937 A.2d 421, 427 n.2 (Pa. 2007). There are two levels

of protective sweeps, which have been defined as follows:

            [A]s an incident to the arrest the officers could, as a
            precautionary matter and without probable cause or
            reasonable suspicion, look in closets and other
            spaces immediately adjoining the place of arrest
            from which an attack could be immediately launched.
            Beyond that, however, we hold that there must be
            articulable facts which, taken together with the
            rational inferences from those facts, would warrant a
            reasonably prudent officer in believing that the area
            to be swept harbors an individual posing a danger to
            those on the arrest scene.

Potts, 73 A.3d at 1281 (quoting Maryland v. Buie, 494 U.S. 325 (1990)).

            Pursuant to the first level of a protective sweep,
            without a showing of even reasonable suspicion,
            police officers may make cursory visual inspections
            of spaces immediately adjacent to the arrest scene,
            which could conceal an assailant. The scope of the
            second level permits a search for attackers further
            away from the place of arrest, provided that the
            officer who conducted the sweep can articulate




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            specific facts to justify a reasonable fear for the
            safety of himself and others.

Id. at 1281-82 (quoting Commonwealth v. Taylor, 771 A.2d 1261, 1267

(Pa. 2001)).

      Accordingly, upon executing the arrest warrant at Munford’s residence,

the police officers were automatically permitted to “look in closets and other

spaces immediately adjoining the place of arrest from which an attack could

be immediately launched[.]”     Id. at 1281.    The evidence reveals that the

bedroom was not visible from the entryway where the arrest took place, but

that it was down a short hallway from the living room. N.T., 9/28/12, at 7.

As such, although the evidence reveals that this was a small apartment, we

cannot conclude that the bedroom was immediately adjoining the place of

arrest.

      We conclude, however, that the evidence does support a finding that

the officers had “articulat[able] specific facts to justify a reasonable fear for

the safety of himself and others” so as to justify a protective sweep that

exceeded the areas immediately adjacent to the location of the arrest.

Potts, 73 A.3d at 1282.      Officer Smith testified that violence is common

when executing arrest warrants for felony drug charges and that a common

concern is the presence and use of deadly weapons against the police when

executing such arrest warrant. N.T., 9/28/12, at 5. Before knocking on the

front door, the officers heard multiple people talking. Id. at 6. There was a




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pause of fifteen to thirty seconds before Munford answered the door. Id. In

consideration of the facts here, it is rational to infer that it would not take

between fifteen and thirty second to answer the door and that the pause

could have been the result of hiding items (or persons) that posed a risk to

the officers’ safety.   Once inside the apartment, the officers observed two

people sitting on a sofa in the living room. Id. A third person then emerged

from the bathroom.      Id.   The emergence of a third person from a more

remote part of the apartment, coupled with the pause before Munford

opened the front door, provided an adequate basis for the officers to suspect

that other people might be concealed in the residence. This permitted the

police officers to check areas that might harbor other potential attackers

further away from the arrest; i.e., Munford’s bedroom.      Potts, 73 A.3d at

1282; see also Commonwealth v. Crouse, 729 A.2d 588, 598 (holding

that protective sweep of second floor of residence was permissible because

in course of executing arrest warrant on first floor, police became aware that

there were persons on the second floor hidden from view).

      Thus, Officer Smith lawfully looked into Munford’s bedroom, where he

observed the marijuana roaches in plain view.      Although the purpose of a

protective sweep is to assure officer safety, police officers are not required

to ignore contraband they encounter in the course thereof. Potts, 73 A.3d

at 1282 (“If, while conducting a protective sweep, the officer should …

discover contraband other than weapons, he clearly cannot be required to



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ignore the contraband, and the Fourth Amendment does not require its

suppression in such circumstances.”).

     On appeal, Munford argues primarily that the police were not entitled

to enter Munford’s residence because (1) they did not have a search

warrant; (2) they did not have to search the residence for him because he

answered the door; and (3) he did not attempt to flee from the police as

they took him into custody.    Munford’s Brief at 12-13. These arguments

ignore the existence and purpose of the protective sweep doctrine, which is

an exception to the search warrant requirement and exists for the purpose

of ensuring officer safety when arresting a suspect in his or her home. In

other words, our focus is not on whether Munford submitted easily when the

officers arrested him in his home, but what scope of protective sweep the

officers were lawfully permitted to perform and whether they exceeded that

scope.

     As discussed above, the officers had articulable facts to believe that

there was a concern for their safety, and therefore, the protective sweep

was permissible.   We find no error in the trial court’s denial of Munford’s

motion to suppress.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/2/2015




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