J-A12028-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSHUA PAUL WHITTAKER,

                            Appellant                  No. 1763 EDA 2013


              Appeal from the Judgment of Sentence June 5, 2013
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0000958-2012


BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*

DISSENTING MEMORANDUM BY PLATT, J.:                 FILED OCTOBER 29, 2014

        I respectfully dissent.      I conclude from the record that under our

standard of review the trial court properly decided in the totality of

circumstances to deny the motion to suppress evidence obtained on

execution of a night time search warrant.          In my view, the challenged

preliminary “searches,” (more precisely, warrantless entries before the night

search warrant was issued and executed), were justified by exigent

circumstances. Furthermore, because there was no illegal search, there is

no antecedent illegality requiring application of the “fruit of an illegal search”

exclusion. I would affirm the trial court’s denial of suppression.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A12028-14


      In addition to the authority cited by the learned Majority, I note the

following applicable legal principles:

            [O]nly in exigent circumstances will the judgment of the
      police as to probable cause serve as a sufficient authorization for
      a warrantless search.

                                         *     *   *

            Exigent circumstances may excuse an otherwise
      unconstitutional search. [Commonwealth v. ]Wright, [742
      A.2d 661, 664 (Pa. 1999). In determining whether exigent
      circumstances exist, one factor the court may consider is
      whether there is “a likelihood that evidence will be destroyed if
      police take the time to obtain a warrant. . . .” Commonwealth
      v. Roland, 535 Pa. 595, 637 A.2d 269, 271 (1994) (citations
      omitted).

Commonwealth v. Wright, 961 A.2d 119, 137-38 (Pa. 2008) (some

citations omitted) (concluding trial court did not err in holding exigent

circumstances justified seizure of evidence without warrant; trial court

properly denied appellant’s suppression motion). Also,

             It is well established that “[a]bsent probable cause and
      exigent circumstances, warrantless searches and seizures in a
      private home violate both the Fourth Amendment and Article 1,
      [Section] 8 of the Pennsylvania Constitution.” Commonwealth
      v. Gibbs, 981 A.2d 274, 279 (Pa. Super. 2009). Our courts
      have extended this constitutional protection to the curtilage of a
      person’s home by analyzing “factors that determine whether an
      individual reasonably may expect that an area immediately
      adjacent to the home will remain private.”          Id. at 279.
      “Curtilage is entitled to constitutional protection from
      unreasonable searches and seizures as a place where the
      occupants have a reasonable expectation of privacy that society
      is prepared to accept.” Commonwealth v. Fickes, 969 A.2d
      1251, 1256 (Pa. Super. 2009).




                                         -2-
J-A12028-14


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

Furthermore,

       It is within the suppression court’s sole province as factfinder to
       pass on the credibility of witnesses and the weight to be given
       their testimony. Moreover, with respect to our scope of review
       on suppression issues, our Supreme Court has held: “it is
       appropriate to consider all of the testimony, not just the
       testimony presented at the suppression hearing, in determining
       whether evidence was properly admitted.” Commonwealth v.
       Chacko, 500 Pa. 571, 459 A.2d 311, 318 n.5 (1983) (emphasis
       in original); see also Commonwealth v. Charleston, 16 A.3d
       505, 516–518 (Pa. Super. 2011) (collecting cases and explaining
       Chacko).

Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (one

citation and some quotation marks omitted).

       Preliminarily, here, the learned Majority’s analysis concedes that the

police had probable cause.1 (See Majority, at *13) (e.g., “Sergeant [Robert

J.] Matalavage had probable cause . . . .” and further “[b]ecause probable

cause alone cannot suffice . . . .”). (See also Majority, at *19 n.9) (“even

though [the] police officers had probable cause . . .”). Therefore, the sole

issue remaining for review of Appellant’s challenge to the denial of

suppression is the existence of exigent circumstances.          To the extent
____________________________________________


1
   Nevertheless, it bears noting that “[p]robable cause justifying a
warrantless arrest is determined by the totality of the circumstances. . . .
Furthermore, probable cause does not involve certainties, but rather the
factual and practical considerations of everyday life on which reasonable and
prudent persons act.” Commonwealth v. Simmen, 58 A.3d 811, 817 (Pa.
Super. 2012) (emphasis added) (citation omitted).




                                           -3-
J-A12028-14


possible, I limit my discussion to that issue. See Commonwealth v. Lee,

972 A.2d 1, 3 (Pa. Super. 2009).

       The learned Majority enumerates the factors to be considered in

determining whether exigent circumstances exist, citing Roland, supra.

(See Majority, at *12, 13).2 For this determination, our Court has observed

that “[a]n analysis of these factors requires an examination of all of the

surrounding circumstances in a particular case. These circumstances will

vary from case to case and the inherent necessities of the situation

at the time must be scrutinized.”                Fickes, supra at 1255 (emphases

added) (citation omitted).

       In my view, the Majority misapplies our standard and scope of review

by its side-by-side comparison of factors from other cases, as if the factors

from those other cases, like evidence of driving under the influence (DUI),

vel non, constitute a per se checklist against which the denial of suppression

in this appeal must be measured. (See Majority, at 11-18). DUI may be an



____________________________________________


2
  The “Roland” factors are taken from Commonwealth v. Wagner, 406
A.2d 1026, 1031 (Pa. 1979), which derived them from Commonwealth v.
Williams, 396 A.2d 1177, 1179-80 (Pa. 1978). Williams borrowed the
seven considerations from Dorman v. United States, 435 F.2d 385, 392
(C.A. D.C. 1970). Our caselaw sometimes refers to the review of the
Roland factors as “Dorman analysis.”           See Pennsylvania Criminal
Procedure, Elements, Analysis & Application, Bruce A. Antkowiak, editor, 3 rd
Ed., at 182 n.88.




                                           -4-
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example of exigent circumstances.       It is not the sine qua non of exigent

circumstances.

         To the contrary, on appellate review, as recognized in principle by the

learned Majority, we must accept all the findings of fact made by the trial

court which are supported by the record.       (See Majority, at *7-8), (citing

Commonwealth v. Berkheimer, 57 A.3d 171, 177 (Pa. Super. 2012)

(“Where the record supports the findings of the suppression court, we are

bound by those facts and may reverse only if the court erred in reaching its

legal conclusions based upon the facts.”)); see also Fickes, supra at 1255

(requiring “an examination of all of the surrounding circumstances in a

particular case.”) (emphasis added) (citation omitted).        We may not re-

weigh the evidence considered by the suppression court.          See Clemens,

supra at 378.

         However, disregarding these requirements, the Majority concludes that

even “[t]hough the driver of the Subaru hit several parked cars, no evidence

of record exists─and the trial court did not find─that the driver left a ‘trail of

destruction’ on the roadway like the defendant in Fickes.” (Majority, at 17).

Here, in my view, the Majority seeks, by an adverse comparison with the

metaphor borrowed from Fickes, to re-characterize the findings of the trial

court.      This checklist comparison approach disregards the “all of the

surrounding circumstances” requirement in favor of an impermissible




                                       -5-
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attempt to re-weigh the evidence. It is also unsupported by the record or

controlling authority (or the facts in Fickes).

      The Majority also misapprehends the underlying facts on which it

bases its analysis.   For example, the Majority maintains that “[h]ere, like

Lee and unlike Fickes, police officers were investigating a hit and run.”

(Majority, at *17) (emphasis added); (see also id., at 13-19).      However,

after the introductory paragraph Fickes plainly states: “In the early morning

hours of August 20, 2007, Officer Gary Ross received a dispatch call to

respond to a hit and run accident.”         Fickes, supra at 1253 (emphasis

added).

      Furthermore, “[i]n so doing [reviewing the findings of the suppression

court], we may consider only the evidence of the prosecution and so much

of the evidence for the defense as remains uncontradicted when read in the

context of the record as a whole.”          Berkheimer, supra (citation and

internal quotation marks omitted). Here, Appellant presented no evidence.

(See N.T. Suppression Hearing, 7/03/12, at 43).        Therefore, there is no

additional evidence to consider and the evidence of the Commonwealth, read

in the context of the record as a whole, stands uncontradicted.

      From my independent review of this case, I would conclude that the

findings of the suppression court are amply supported by the record.

Accordingly, this Court is not at liberty to re-weigh the evidence or disturb

the suppression court’s ruling on the implicit supposition that other facts


                                      -6-
J-A12028-14


might have made a more compelling case of exigent circumstances for the

Majority.

      Similarly, I conclude that the Majority misapprehends the scope and

application of our standard of review, e.g., in its determination that the

gravity of the offense was low (the “first” Roland factor), because the police

were only investigating a report of property damage from a hit-and-run

accident.   (See Majority, at 15).   In this context, it bears repeating that

“[a]n analysis of these factors requires an examination of all of the

surrounding circumstances in a particular case. These circumstances will

vary from case to case and the inherent necessities of the situation

at the time must be scrutinized.”          Fickes, supra at 1255 (emphases

added) (citation omitted).   See, e.g., Commonwealth v. Dommel, 885

A.2d 998, 1004 -1005 (Pa. Super. 2005), appeal denied, 920 A.2d 831 (Pa.

2007) (reversing suppression; even though appellant not charged with

violent offenses, his actions in hit-and-run incident indicated either callous

disregard of, or inability to regard at all, both violent automobile collision

which he caused and subsequent official commands to stop.             Though

appellant was neither wanted for a felony nor believed to be armed, there

was nevertheless reason under these facts to consider him either chemically

impaired or highly unpredictable and perhaps dangerous; actions thus

warranted immediate pursuit).




                                     -7-
J-A12028-14


       Here, the police were faced not merely with a case of property damage

(the dimensions of which it was impossible to determine before completing

their investigation), but a missing hit-and run driver, (unlike Lee, supra at

2, where the appellant’s wife told the police he was asleep in their house),

who could have been driving under the influence, who might have been

injured from the multiple collisions, who might have been hiding with an

intent to escape into the darkness, even the possibility that there were other

passengers (who also might have been injured in the multiple collisions),

and last but not least, direct evidence of a marijuana growing operation.

Therefore, this case differs factually in many respects from Lee.

       Even more importantly, the learned Majority overlooks or ignores that

there is no indication in Lee that the police sought a search warrant. Here,

it is undisputed that the police obtained a search warrant and did not

seize any evidence until the search warrant was executed. (See N.T.

Suppression Hearing, at 13, 31).3

       I believe the learned Majority also errs by overlooking the complexity

of the dual investigation the police had to undertake that evening. Exigent

circumstance existed under the “Roland factors” not only because of the
____________________________________________


3
  On execution of the warrant, police discovered and seized a large amount
of marijuana inside the toilet bowl, packaging equipment, a scale commonly
used to weigh narcotics, cash in excess of $4,000, several books on growing
marijuana, two long guns (a .22 and a 30-36), a Tec-9 9 mm pistol, and
related items. (See N.T. Suppression Hearing, at 31; see also Order Sur:
Motion to Suppress, Findings of Fact, at 4-5).



                                           -8-
J-A12028-14


ongoing investigation of the unresolved multiple hit-and-run accidents and

Appellant’s flight, but also because of the subsequent discovery, during the

course of the ongoing hit-and-run investigation, of the evidence of a

marijuana growing operation in plain view.

       In the same vein, I respectfully disagree with the Majority’s apparent

lack of regard for the possibility of personal injury as a result of the motor

vehicle accidents. That there was “no evidence that anyone was injured” is

not, and should not be, dispositive. (Majority, at *19).

       The more appropriate inquiry is whether, given the limited information

available to the police at that point in time, it was reasonable for them to

consider that someone might have been injured, and possibly required

emergency attention.     Officer Christopher Wienczek, as well as Sergeant

Matalavage, so testified: “[B]ased on the amount of damage that was left at

the scene, I didn’t know if the driver was injured or not.” (N.T. Suppression

Hearing, 7/03/12, at 14; see also id. at 18, 28, 39). Furthermore, because

the striking vehicle was not registered to Appellant, there remained the open

possibility that the vehicle was stolen.   (See N.T. Suppression Hearing, at

42).

       The trial court was entitled to consider all this testimonial evidence

under the totality of the circumstances test.     We may not re-weigh the

evidence considered by the suppression court.       See Clemens, supra at

378.


                                     -9-
J-A12028-14


       An    additional    consideration       supporting   a   finding   of   exigent

circumstances is that, until Appellant reappeared, it was reasonable for the

police to suppose that he might have been hiding, in the house or in the

backyard, and consequently, in the darkness, there was the risk of escape.

See Roland, supra at 270-71 (the fifth “Roland factor”).

       Similarly, when Appellant entered his house, flouting the explicit

instructions of the police (who were properly trying to secure the premises in

expectation of the search warrant), locked the front door behind him, and

barricaded himself in the bathroom behind another locked door, it was

imperative that the police take prompt action to avoid the possible

destruction of evidence, (an additional “Roland factor”), which, in the event,

is exactly what Appellant tried to do.             (See N.T. Suppression Hearing,

7/03/12, at 10-11, 31). Appellant refused police orders to come out of the

bathroom.4     (See id., at 10).       On execution of the search warrant, police

found and recovered a large amount of marijuana inside the toilet bowl.5

(See id., at 31).      This was not a mere likelihood that evidence would be

destroyed without immediate police action. Although probable cause is not



____________________________________________


4
 The police had to knock the door down and “tase” Appellant to subdue him.
(See Order, Findings of Fact, at 4, ¶ 15; see also Stipulations, supra at 1).
5
  Police found a half pound of marijuana in the toilet.           (See Stipulations,
supra at 2).



                                          - 10 -
J-A12028-14


to be measured by the result, in this case it is a fact that the likelihood

turned out to be a certainty.

      To summarize my analysis of the Dorman or Roland factors, the first

factor,   gravity   of   the   offense,   is   satisfied   both   by   the   reasonable

apprehension of possible injury as well as discovery of evidence of the

growth and production of marijuana, an even more serious offense than the

hi-and-run incidents; the second factor, suspect reasonably believed to be

armed, does not appear to be satisfied, even though on execution of the

warrant numerous firearms were found in Appellant’s house. The Majority

concedes the third factor, probable cause. With the striking vehicle parked

in Appellant’s driveway, there was some reason to believe that the suspect

was within the premises being entered, the fourth factor.               As to the fifth

factor, there was a strong likelihood of escape in the darkness; on the sixth

factor, the first entry was peaceable.          As to the seventh factor, whether

entry was made at night, it was.

      Of the “additional” Roland factors, I would note that the record

abundantly supports the trial court’s finding that the police were concerned

that Appellant might try to destroy evidence. (See Order, 8/23/12, Findings

of Fact, at 3, 4). And, given Appellant’s unpredictable behavior, the record

supports that there was some danger to police or other persons inside or

outside the dwelling. (See id. at 4 ¶ 15) (Appellant resisted entry by police




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J-A12028-14


and had to be subdued by Taser before he was arrested and removed); see

also Roland, supra at 271.

       Balancing these factors against one another, as our caselaw, including

Roland itself, requires, I would conclude that the pre-warrant intrusions

made    by   the   police   were   more   than   amply    justified   by   exigent

circumstances.

       I would note specifically that the Majority misapprehends the standard

for hot pursuit and erroneously concludes there was none. (See Majority, at

14-15, 17-18). I respectfully disagree.

       The Majority relies on Commonwealth v. Lee, 972 A.2d 1, at 5 (Pa.

Super. 2009), which, as the Majority notes, was quoting Commonwealth v.

Rispo, 487 A.2d 937, at 939 (Pa. Super. 1985):

       In significant contrast, “hot pursuit of a fleeing felon” sufficient
       to create exigent circumstances for constitutional purposes
       requires a showing that “the need for prompt police action is
       imperative, either because the evidence sought to be preserved
       is likely to be destroyed or secreted from investigation, or
       because the officer must protect himself from danger. . . .”
       Rispo, 487 A.2d at 939 (quoting Commonwealth v. Holzer,
       480 Pa. 93, 102, 389 A.2d 101, 106 (1978)).

Lee, supra at 5.

       Rispo, in turn, states:

             However, warrantless searches and seizures are
       excused        where      exigent       circumstances      exist.
       Commonwealth v. Montgomery, supra at 376, 371 A.2d at
       888. Such circumstances arise “where the need for prompt
       police action is imperative, either because evidence sought to be
       preserved is likely to be destroyed or secreted from
       investigation, or because the officer must protect himself from

                                      - 12 -
J-A12028-14


       danger to his person by checking for concealed weapons.”
       Commonwealth v. Holzer, supra, 480 Pa. [93] at 102, 389
       A.2d [101] at 106 [(Pa. 1978)]; Commonwealth v. Hinkson,
       supra, 315 Pa. Superior Ct. at 27, 461 A.2d at 618.

Rispo, supra at 939-40 (emphases added). Therefore, it is apparent that

the   Lee     Court    mis-read      prior     authority’s   explication   of   exigent

circumstances to be the definition, or the equivalent, of hot pursuit. They

are two separate, albeit related, concepts.6

       As the enumeration in the footnote establishes beyond dispute, the

Holzer Court treated hot pursuit as one example of exigent circumstances,

not as its equivalent, much less its definition. The Majority’s misreading and
____________________________________________


6
 Any doubt of this misunderstanding is resolved by reference to Holzer,
which, in pertinent part, provides:

          The warrant requirement, however, is excused where
       exigent circumstances exist. Exceptions arise where the
       need for prompt police action is imperative, either because
       evidence sought to be preserved is likely to be destroyed or
       secreted from investigation, or because the officer must protect
       himself from danger to his person by checking for concealed
       weapons. N.5 Exceptions also arise where the warrantless search
       or seizure by a police officer does not amount to a significant
       invasion of a defendant’s reasonable expectations of privacy.
       These exceptions reflect practical compromises between the
       interests of the state in effective law enforcement and the
       privacy interests of its citizens.
       _____________
       FN5. Recognized exceptions in this category include hot
       pursuit, emergency situation, incident to lawful arrest and stop
       and frisk.

Holzer, supra at 106 (emphases added) (one footnote and citations
omitted).




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J-A12028-14


reliance on Lee perpetuates this misinterpretation.             Exigent circumstances

are not limited to hot pursuit.          In any event, my review of the record

confirms that the police here were in hot pursuit and had exigent

circumstances.

       The concepts of hot pursuit and fresh pursuit frequently arise in the

context of the Statewide Municipal Police Jurisdiction Act (MPJA), 42

Pa.C.S.A. §§ 8951–8954.7 See, e.g., Commonwealth v. Reigel, 75 A.3d

1284 (Pa. Super. 2013) (holding police officer, acting within his primary

jurisdiction, is authorized to issue citation for summary offense committed in

another jurisdiction). Specifically, sub-section 8953(a)(2) provides that :

              Where the officer is in hot pursuit of any person for any
       offense which was committed, or which he has probable cause to
       believe was committed, within his primary jurisdiction and for
       which offense the officer continues in fresh pursuit of the person
       after the commission of the offense.

42 Pa.C.S.A. § 8953(a)(2).

       Construing     the   hot   and    fresh     pursuit   requirements   of   section

8953(a)(2), this Court has explained that:

       “[H]ot pursuit” requires some sort of chase, but does not require
       a “fender-smashing Hollywood-style chase scene” nor “police
       observation of the criminal activity.” Furthermore, pursuit of a
       suspect may constitute a chase when it is based on witness
       information as to the location of the suspect. And “fresh pursuit”
       requires that it be immediate, continuous and uninterrupted.
____________________________________________


7
  I observe that in this case the actions of the Limerick police were
undertaken to assist the neighboring Royersford police force, where the hit-
and-runs occurred.



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J-A12028-14



Commonwealth v. Peters, 915 A.2d 1213, 1219 (Pa. Super. 2007),

affirmed, 965 A.2d 222, 225 (Pa. 2009) (citation and some internal

quotation marks omitted).     In its affirmance, our Supreme Court further

explained:

                   While Section 8953(a)(2) requires both “hot pursuit”
      and “fresh pursuit” to fulfill the exception to the MPJA, the
      statute does not include definitions for either form of pursuit.
      However, the Superior Court has defined “hot pursuit” and “fresh
      pursuit” under Section 8953 and has consistently applied its
      interpretation of each. Here, the panel ably set forth what is
      necessary to comply with Section 8953(a)(2). We agree that
      “hot pursuit” and “fresh pursuit” require some sort of
      investigation and tracking of the perpetrator and that that
      pursuit be immediate, continuous and uninterrupted. The facts
      here support the panel’s application of these standards to the
      instant case and thus confirm its sound findings and conclusion.

Peters, 965 A.2d at 225 (footnote omitted).

      Here, similarly, my review of the record confirms that the pursuit of

Appellant on receipt of the radio dispatch was immediate, continuous, and

uninterrupted. The record leaves no doubt that the police were in hot and

fresh pursuit. The Majority’s citation in support of its contrary conclusion is

to Lee. (See Majority, at 14-15). For the reasons already noted, I find that

authority unpersuasive.

      Additionally, the Majority’s unsupported conclusion that the passage of

twenty-to twenty five minutes from the original radio dispatch obviates hot

pursuit is unsupported by controlling authority and erroneous.            (See

Majority, at *17-18). There is no arbitrary time limit on hot pursuit. To the


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J-A12028-14


contrary, our Supreme Court and this Court have repeatedly found hot

pursuit despite longer time frames than occurred here. See, e.g., Peters,

supra at 225 (approving approximately one hour pursuit); Fickes, supra at

1253 (thirty seven minutes); Commonwealth v. Brown, 444 A.2d 149,

153 (Pa. Super. 1982) (thirty minutes).

      Finally, I would note that the learned Majority’s discussion of curtilage

does not provide an alternative ground of relief for Appellant. (See Majority,

at *9-11).

            In determining what constitutes “curtilage,” we consider
      “factors that determine whether an individual 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 that society
      is prepared to accept.” Simmen, 58 A.3d at 815. See Gibbs,
      (holding that front porch did not constitute “curtilage” where
      there was no front yard or other enclosed space preceding or
      surrounding the porch, the porch abutted the sidewalk, there
      was no gate blocking entry to the porch and nothing else that
      would indicate that it was closed to members of the general
      public).

Johnson, 68 A.3d 930, 936 (Pa. Super. 2013) (emphasis in original)

(concluding exigent circumstances justified police officers’ warrantless entry

into defendant’s trailer; officers who detected odor of burning marijuana

when ascending steps of trailer reasonably believed that defendant might

destroy   drugs   inside   trailer,   or   otherwise   act   to   frustrate   police

investigation).




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      It is the Commonwealth’s burden to prove that the search and seizure

is valid. See id. Nevertheless, Appellant’s mere invocation of curtilage does

not end the Fourth Amendment (or Pennsylvania constitutional) inquiry.

(See Appellant’s Brief, at 9-10).

            To prevail successfully on a claim of governmental invasion
      of privacy, [a]ppellee is required first to show that a subjective
      expectation of privacy exists as to the area being searched. An
      expectation of privacy is present when the individual, by his
      conduct, exhibits an actual (subjective) expectation of privacy
      and that the subjective expectation is one that society is
      prepared to recognize as reasonable.              The controlling
      consideration is whether the individual contesting the search and
      seizure entertains a legitimate expectation of privacy in the
      premises or area searched.

Commonwealth v. Oglialoro, 579 A.2d 1288, 1290-91 (Pa. 1990)

(citations and internal quotation marks omitted); see also Johnson, supra

at 936; Simmen, supra at 815.

      Here, aside from citing cases for general principles, Appellant fails to

develop an argument in support of his specific claim, or to support it with

citation to pertinent authority. As already noted, he presented no evidence

at the suppression hearing.    No new evidence, except for the stipulations,

was introduced at the stipulated trial. On appeal, he offers no argument in

support of a reasonable expectation of privacy: no gate, no fence, no “No

Trespassing” sign, nor anything else, except to declare that there is “no

doubt” to his claim. (Appellant’s Brief, at 10).

      Instead, Appellant cites Commonwealth v. Robbins, 263 A.2d 761

(Pa. Super. 1970) (en banc), a per curiam affirmance of judgment of

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J-A12028-14


sentence.    (See Appellant’s Brief, at 10).    In Robbins, Judge Hoffman,

concurring, suggests that marijuana plants found in a wooded area twenty-

five feet from the appellant’s lawn were not within the curtilage.           See

Robbins, supra at 761-62. Appellant baldly posits that because his two-

foot marijuana plant and 400 watt light bulbs were right outside his back

door, his case is “unlike in Robbins[.]” (Appellant’s Brief, at 10). I find this

argument undeveloped, without citation to pertinent authority.       Accordingly,

I would find Appellant’s curtilage argument waived.

      I note that the Majority offers an intermittent, and sometimes

confusing, discussion of curtilage. (See Majority, at 9-11, 13, 14 n.6). In

any event, it is not the role of this Court to develop arguments for a litigant.

“It would be improper for this Court to act as counsel for a party. That is,

we must not write a party’s brief and develop the analysis necessary to

support the party’s position.” Johnson, supra at 936.

      Even assuming for the sake of argument that Appellant’s two foot

marijuana plant was within the curtilage of his home, the question still

remains whether the police had exigent circumstances to enter the area

behind his house.     Just as the existence of probable cause and exigent

circumstances may excuse an otherwise unconstitutional search of a private

home, they may excuse a search of the curtilage. See Wright, supra at

137-38.     Controlling case law extends the protections of the home to the

curtilage. It does not extend greater protection to the curtilage.


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J-A12028-14


      “Curtilage is entitled to constitutional protection from unreasonable

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

expectation of privacy that society is prepared to accept.” Simmen, supra

at 815 (Pa. Super. 2012), (quoting Fickes, supra at 1256); see also

Oglialoro, supra at 1290-91 (claimant required to show subjective

expectation of privacy as to area searched).

      Here, Appellant failed to develop a cognizable claim of reasonable

expectation of privacy. The Majority’s somewhat discursive analysis fails to

refute that the discovery of the two foot marijuana plant and high wattage

cultivation lamps even if found in the curtilage, was justified by exigent

circumstances.

      Because the Majority erroneously concludes that there were no exigent

circumstances to enter Appellant’s property, it also errs in its conclusion that

evidence subsequently seized on execution of the search warrant “should

have been suppressed as the fruits of an illegal search.” (See Majority, at

*20). In support, the Majority cites Commonwealth v. Johnson, 86 A.3d

182, 187 (Pa. 2014) (holding trial court properly suppressed physical

evidence seized by police incident to arrest based solely on invalid, expired

arrest warrant). The facts of Johnson are inapposite. This is not a question

of a defective warrant. Johnson plainly does not apply.

      Here, there were no fruits of an illegal search. The police had exigent

circumstances to enter Appellant’s property (and curtilage).      They sought


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and obtained a warrant.         The evidence obtained on the execution of the

search warrant was not tainted. See Commonwealth v. Jackson, 62 A.3d

433, 440 (Pa. Super. 2013) (holding observations of officers lawfully present

in appellant’s home when they observed controlled substances in plain view

supported issuance of search warrant for appellant’s premises; items seized

were legally obtained and admissible as evidence against appellant).8

       The police were in hot pursuit, had exigent circumstances to enter,

and properly obtained a search warrant before they seized any materials

previously viewed. The trial court correctly denied suppression.

       Accordingly, I respectfully dissent.




____________________________________________


8
  As previously noted, I have limited my discussion to the issue of exigent
circumstances.      Because I conclude that the police had exigent
circumstances to enter Appellant’s property, it is not necessary to address
whether the evidence seized was also admissible under the plain view
doctrine, or under the inevitable discovery rule. Additionally, I would
remand to the trial court, as it requested, for re-sentencing. I join the
Majority in its conclusion that the Rule 600 claim is not reviewable on the
present state of the record.



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