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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 entered June 5, 2013
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No: CP-46-CR-0000958-2012


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

MEMORANDUM BY STABILE, J.:                             FILED OCTOBER 29, 2014

        Joshua Paul Whittaker appeals from the judgment of sentence entered

following his conviction of drug crimes and other offenses.               Whittaker

challenges the denial of his suppression and speedy-trial motions. He also

challenges the trial court’s application of a mandatory minimum sentence.

Because     police   officers   lacked    exigent   circumstances   to   perform   a

warrantless nighttime search of the curtilage of Whittaker’s home, the trial

court erred in denying his motion to suppress. We vacate and remand.

        On October 5, 2011, at around 9:00 p.m., the Limerick Township,

Montgomery County, Police Department received a report of a hit-and-run



____________________________________________


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



accident with property damage that occurred in nearby Royersford Borough.1

The report described the vehicle as a black Subaru Outback with a roof rack

that sustained damage to the driver’s side.           See also N.T. Suppression,

7/3/12, at 23. Responding to the call, after about 20 to 25 minutes, Officer

Christopher Wienczek located a vehicle matching the description at 21

Springford Road, Limerick Township, one to one and one-half miles from the

accident scene. No one was in or near the vehicle, which was parked in the

driveway.     Officer Wienczek did not find anyone in front of the house or

behind it, and no one responded when he knocked on the front door, even

though a light was on inside.           After checking the vehicle’s license plate,

Officer Wienczek, who knew that Whittaker lived at 21 Springford Road

based on a prior encounter, discovered that the Subaru was registered to

someone who did not live there.

       Sergeant Robert Matalavage arrived at the residence and, like Officer

Wienczek, walked around the house to find anyone connected with the

damaged Subaru.          At a back window, Sergeant Matalavage shined his

flashlight inside and noticed a toothpick-sized marijuana stem sitting on a


____________________________________________


1
  Unless otherwise noted, the facts are taken from the Trial Court Order sur:
Motion to Suppress, 8/23/12, which contains findings of fact in support of
the order denying Whittaker’s motion to suppress. By way of explanation, a
different judge presided at trial, and she incorporated by reference the
suppression court’s order into the Pa.R.A.P. 1925(a) opinion.




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tray on a table.    When he went to the back door, Sergeant Matalavage

noticed much larger evidence of contraband: a two-foot tall marijuana plant

in a pot sitting next to the door.

      He knocked on the back door, and discovered that it was unlocked.

Concerned that either the Subaru driver or the marijuana cultivator was

inside, Sergeant Matalavage and two other officers conducted a one- to

two-minute protective sweep of the interior, to search for persons who might

destroy evidence or contraband. They found no one, and they saw no other

contraband other than the marijuana sitting on the tray.

      Police officers secured the perimeter while Sergeant Matalavage got a

search warrant. Whittaker arrived home, but officers instructed him not to

enter the residence. Whittaker ignored their instructions, ran into his house

and barricaded himself inside a bathroom.       Fearing that Whittaker was

destroying evidence, Officer Wienczek and others went in after Whittaker.

They broke down the bathroom door, forcibly removed Whittaker, and

arrested him.

      At 11:50 p.m., police executed a search of the residence using a

nighttime search warrant obtained by Sergeant Matalavage. They recovered

a large amount of marijuana from the toilet bowl of the bathroom where

Whittaker was arrested.      They also found packaging materials, a digital

scale, glass smoking pipes, bongs, several books on how to grow marijuana,

$4,000.00 in cash, a .22 caliber rifle, a .30-06 rifle, a Tech 9 mm handgun,




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and a plastic baggie containing psychedelic mushrooms.                 See also N.T.

Suppression, 7/3/12, at 31.

       On October 6, 2011, police charged Whittaker with two counts of

possession with intent to manufacture or deliver a controlled substance

(PWID); two counts of possession of a controlled substance; and one count

each of possession of drug paraphernalia, tampering with or fabricating

physical    evidence,     obstructing     the    administration   of   law   or   other

governmental function, and resisting arrest.2 Whittaker moved to suppress

the items seized from his house, and the trial court denied the motion. On

March 13, 2013, Whittaker requested dismissal of the charges, alleging a

violation of the Speedy Trial Rule, Pa.R.Crim.P. 600.             The trial court also

denied that motion by written opinion.

       After a stipulated bench trial, the trial court convicted Whittaker on all

counts. The trial court later sentenced Whittaker to mandatory flat five-

year sentence of incarceration3 followed by two years’ probation.                  This

appeal followed.

____________________________________________


2
 35 P.S. § 780-113(a)(30), (16), and (32); and 18 Pa.C.S.A. §§ 4910(1),
5101, and 5104, respectively.
3
  See 42 Pa.C.S.A. § 9712.1, declared unconstitutional by Commonwealth
v. James Newman, --- A.3d ---, 2014 PA Super 178, 2014 WL 4088805,
2014 Pa. Super. LEXIS 2871 (filed Aug. 20, 2014) (en banc).
Section 9712.1 required a mandatory minimum five years in prison for
offenders convicted of drug trafficking who also possessed a firearm. Id.
§ 9712.1(a). In Commonwealth v. Ramos, 83 A.3d 86, 94 (Pa. 2013),
our Supreme Court held that § 9712.1 was an exception to the general rule
(Footnote Continued Next Page)


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      Whittaker raises three issues for our review, which we have reordered

for ease of discussion:

      I.     Did the trial court [err] in failing to dismiss all the criminal
             charges pursuant to Rule 600 of [the] Rules of Criminal
             Procedure when the Commonwealth failed to exercise due
             diligence in bringing the [D]efendant to trial within 365
             days?

      II.    Did the trial court err in failing to suppress physical
             evidence recovered from the residence when police
             searched the curtilage of the residence without a warrant
             and without probable cause and in circumstances where
             exigency was absent?

      III.   Did the trial court err in sentencing the Defendant to a flat
             five years of imprisonment when the Commonwealth failed
             to give proper notice of the intention to seek the
             mandatory pursuant to 42 Pa.C.S.A. § 971[2].1(c)?

Appellant’s Brief at 4.

      We consider the Rule 600 issue first, because were we to find a

violation, it would dispose of the appeal.         The proper remedy for the

Commonwealth’s failure to try a defendant within 365 non-excludable days

is dismissal of the complaint with prejudice. See, e.g., Commonwealth v.

Sloan, 67 A.3d 1249, 1251 (Pa. Super. 2013) (discharging a defendant for a
                       _______________________
(Footnote Continued)

that a minimum sentence of incarceration cannot be more than half of the
maximum sentence.

However, the mandatory sentence required by § 9712.1 can no longer be
applied, because the procedure for implementing it is unconstitutional under
Alleyne v. United States, 133 S. Ct. 2151 (2013). James Newman,
2014 WL 4088805, at *1, *13-14, 2014 Pa. Super. LEXIS 2871, at *1, *32-
40.



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Rule 600 violation).      We cannot reach the merits of this issue.        Whittaker

neither filed the required motion nor ensured that the transcript of the Rule

600 hearing was part of the certified record on appeal. Therefore, he has

failed to preserve his Rule 600 challenge for appellate review.

       Rule 600 requires the filing of a written motion. Former Pa.R.Crim.P.

600(G); Current Pa.R.Crim.P. 600(D)(1).4           A written motion in a criminal

case is “filed” with the clerk of courts. Pa.R.Crim.P. 567(A)(1). “[L]eaving

motions in the judge’s chambers, or even handing a copy to the judge in the

courtroom or elsewhere, does not constitute filing.”            Commonwealth v.

Lynch, 450 A.2d 664, 666 (Pa. Super. 1982).                Here, Whittaker merely

handed a copy of his Rule 600 motion to the trial judge.              Because it was

never filed with the clerk of courts, it is not a part of the record. On appeal,

this   Court    cannot    consider     matters   outside   of   the   record.   See

Commonwealth v. Ross, 57 A.3d 85, 96-97 (Pa. Super. 2012) (en banc)

(“This Court does not rely on items dehors the record, such as assertions in

an appellate brief or a trial court opinion.”) (quoting Commonwealth v.



____________________________________________


4
  Rule 600 was rescinded and replaced effective July 1, 2013. Former Rule
600(G) required a defendant to “apply” for an order dismissing charges,
which had been interpreted to require the filing of a written motion.
Commonwealth v. Brock, 61 A.3d 1015, 1016, 1019 (Pa. 2013
(reaffirming Commonwealth v. Drake, 414 A.2d 1023 (Pa. 1980), and
holding that “Rule 600 requires a defendant to file a written motion to
dismiss”). Current Rule 600(D)(1) explicitly requires the filing of a written
motion.



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Rush, 959 A.2d 945, 949 (Pa. Super. 2008)). Whittaker therefore failed to

preserve his Rule 600 claim.

      Even if we excuse Whittaker’s failure to file a written motion, the claim

is waived for another reason. The transcript of the Rule 600 hearing is not

part of the record. See Commonwealth v. Little, 879 A.2d 293, 300-01

(Pa. Super. 2005) (refusing to consider a claim because the relevant

transcript was not part of the record). For Rule 600 issues, we review the

evidence produced at the Rule 600 hearing and the trial court’s findings for

an abuse of discretion. Commonwealth v. Lewis, 804 A.2d 671, 673 (Pa.

Super. 2002). Without the transcript, we cannot determine whether the trial

court abused its discretion. Although the trial court made findings of fact,

we cannot determine whether the record supports those findings. In sum,

we cannot effectively review the denial of an unfiled motion and a hearing

whose transcript is not a part of the record.

      We next turn to Whittaker’s challenge to the denial of his motion to

suppress.     He argues that police lacked probable cause and exigent

circumstances to perform a warrantless search of the curtilage of his house.

      In reviewing an order denying a motion to suppress, we must

determine

      whether the record supports the trial court’s factual findings and
      whether the legal conclusions drawn therefrom are free from
      error. In so doing, we may consider only the evidence of the




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       prosecution and so much of the evidence for the defense as
       remains uncontradicted when read in the context of the record
       as a whole.[5] 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.

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

banc) (internal quotations and citations omitted).

       “It is axiomatic that the ‘physical entry of the home is the chief evil

against which the wording of the Fourth Amendment is directed.’” Id.

(quoting Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)); see also

United States v. Jones, 132 S. Ct. 945, 950-51 (2012) (noting that the

Fourth Amendment protects property rights in, inter alia, a person’s home,

and concluding that the Katz test6 did not “did not narrow the Fourth

Amendment’s scope”).

       The Fourth Amendment to the United States Constitution and
       Article 1, § 8 of the Pennsylvania Constitution require that
       searches be conducted pursuant to a warrant issued by a neutral
       and detached magistrate. A warrantless search or seizure is per
       se unreasonable unless it falls within a specifically enumerated

____________________________________________


5
  Our Supreme Court recently held that the appellate scope of review of an
order granting or denying suppression is limited to the evidence produced at
the suppression hearing—and not the record as a whole. In the Interest
of L.J., 79 A.3d 1079 (Pa. 2013). L.J. does not apply here. The ruling is
prospective, id. at 1088-89, and post-dates the trial court’s decision in this
case. Therefore, if necessary, we may review the entire record.
6
  Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)
(stating that the Fourth Amendment protects areas for which a person has
an actual and reasonable expectation of privacy).



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      exception. Exigent circumstances provide one such exception to
      the warrant requirement.

Commonwealth v. Lee, 972 A.2d 1, 3 (Pa. Super. 2009) (internal

quotations and citations omitted). Thus, to perform a warrantless search of a

home, police must have probable cause and an exception to the warrant

requirement, for example, exigent circumstances.          Id. at 3 (quoting

Commonwealth v. Roland, 637 A.2d 269, 270-71 (Pa. 1994)).

      Furthermore, the Fourth Amendment to the United States Constitution

and Article I, § 8 of the Pennsylvania Constitution protect not only the inside

of a home, but also the curtilage surrounding it. Commonwealth v. Gibbs,

981 A.2d 274, 279-80 (Pa. Super. 2009). Thus, for purposes of the Fourth

Amendment and Article I, § 8, entering the curtilage is indistinguishable

from physically entering the home. See, e.g., Commonwealth v. Cihylik,

486 A.2d 987, 991 (Pa. Super. 1985) (noting that the word “houses” in the

Fourth Amendment also includes the curtilage).

      “The United States Supreme Court has defined ‘curtilage’ as ‘the area

to which extends the intimate activity associated with the ‘sanctity of a

man’s home and privacies of life.’” Lee, 972 A.2d at 3 n.2 (quoting Oliver

v. United States, 466 U.S. 170, 180 (1984)). In determining whether an

area is within the curtilage, our courts “analyze factors that determine

whether an individual reasonably may expect that an area immediately

adjacent to the home will remain private.” Commonwealth v. Simmen, 58

A.3d 811, 815 (Pa. Super. 2012) (internal quotation omitted).



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       Initially, Officer Wienczek’s entry onto Whittaker’s property and

knocking on the front door was not a search under the Fourth Amendment or

Article I, § 8.    The driveway and front of the house were outside of the

curtilage because they were visible from the public street. An area next to a

house that is exposed to public view and used by the public to access the

house is not within the curtilage.         Commonwealth v. Simmen, 58 A.3d

811, 815-16 (Pa. Super. 2012); see also Gibbs, 981 A.2d at 279-80

(holding that an unenclosed front porch abutting a public sidewalk was not

within the curtilage).

       Sergeant Matalavage’s going behind the house, however, was clearly

a search implicating constitutional protections against unreasonable searches

and seizures.7 The area next to the back door could not be viewed from the

public street. Moreover, it was immediately adjacent to the backdoor, not

the front door which the general public and, indeed, Officer Wienczek

initially, use to access the house.        Rather, accessing the area next to the

backdoor required the police officer to go behind the house. See Trial Court

Order sur: Motion to Suppress, 8/23/12, at 2-3. Indeed, the Commonwealth

never argued that the backyard of Whittaker’s house was not part of the

curtilage, instead      arguing that      the   search was justified by exigent


____________________________________________


7
  Officer Wienczek’s going behind the house also was a search, though it is
irrelevant, as he discovered no evidence.



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circumstances.8      See N.T. Suppression, 7/3/12, at 50; see also Lee, 972

A.2d at 3-4 & n.2 (area behind defendant’s house was part of the curtilage).

Therefore, we start with the premise that Sergeant Matalavage’s search in

the rear of the house triggered the Fourth Amendment and required

probable cause and an exception to the warrant requirement. Lee, 972 A.2d

at 3-4.

       “A determination as to whether probable cause exists is based on the

totality of circumstances.         Probable cause exists where the facts and

circumstances within the officers’ knowledge are sufficient to warrant a

person of reasonable caution in the belief that an offense has been or is

being committed.”        Commonwealth v. Rushing, 71 A.3d 939, 965 (Pa.

Super. 2013), rev’d in part on other grounds, -- A.3d --- No. 3 MAP 2014

(Pa. filed Aug. 18, 2014).

       In determining whether exigent circumstances exist, a number
       of factors are to be considered[:]

          (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 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 the entry, i.e., whether it was made at
          night.   These factors are to be balanced against one

____________________________________________


8
  If the back porch was outside of the curtilage, then police would have
needed no suspicion to enter.



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           another in determining whether the warrantless intrusion
           was justified.

     Other factors may also be taken into account, such as whether
     there is hot pursuit of a fleeing felon, a likelihood that evidence
     will be destroyed if police take the time to obtain a warrant, or a
     danger to police or other persons inside or outside the dwelling.
     Nevertheless, police bear a heavy burden when attempting to
     demonstrate an urgent need that might justify warrantless
     searches or arrests.

Roland, 637 A.2d at 270-71 (internal citations and quotations omitted).

Moreover, the Commonwealth must show by clear and convincing evidence

that the circumstances surrounding the opportunity to search were truly

exigent. Lee, 972 A.2d at 4.

     For example, in Roland, police charged the defendant with furnishing

alcohol to minors and drug misdemeanors after they entered his home

without a warrant to investigate a report of underage drinking. Roland, 637

A.2d at 270. Using the above factors, our Supreme Court determined that

police lacked an exception to the warrant requirement that would allow them

to breach the defendant’s home.     Id. at 271.   The police were not in hot

pursuit of a fleeing felon. Id. No danger to police existed justifying

immediate entry, the people inside the house were unarmed, and the entry

occurred at night, “a particularly suspect time        for searches to     be

conducted[;]” and the offense being investigated was relatively minor. Id.

     In addition, the Supreme Court disavowed this Court’s ruling that

exigency existed because evidence of the crime (beer cans) could have been

destroyed and the minor partygoers could have fled while police obtained a

warrant.    Id.   Our Supreme Court noted that beer cans are not easily

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destroyed, police could have arrested any fleeing minor for possession of

alcohol or public intoxication. Id. at 272. Insofar as some minors may have

escaped, “[o]ne of the prices we have to pay for the security which the

Fourth Amendment bestows upon us is the risk that an occasional guilty

party will escape.” Id. (quoting Commonwealth v. Henderson Newman,

240 A.2d 795, 798 (Pa. 1968)).

      Sergeant Matalavage had probable cause to search behind the home.

Limerick Township Police officers had received a report of a hit-and-run

accident. They discovered a vehicle matching the exact description of the

report in the driveway of Whittaker’s home, and the vehicle had fresh

damage of the type matching the report of the accident.       Finally, no one

answered the front door even though a light was on inside.

      Because probable cause alone cannot suffice to search a home—

including the curtilage—without a warrant, we must address whether exigent

circumstances justified the search. Having reviewed the Roland factors, we

conclude that the Commonwealth failed to prove by clear and convincing

evidence that exigent circumstances existed.    The case relied upon by the

trial court and the Commonwealth, Commonwealth v. Fickes, 969 A.2d

1251 (Pa. Super. 2009), is plainly distinguishable.     Rather, this case is

comparable to Lee, relied upon by Whittaker, in which we held police lacked

exigent circumstances to justify a warrantless entry into the curtilage of the

defendant’s house.    In fact, there is even less of a showing of exigent

circumstances here than in Lee.

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      In Lee, a woman called police at 11:30 p.m. after hearing a loud crash

in her front yard and noticing that her mailbox was shattered into pieces and

a large pine tree had been partially uprooted. Lee, 972 A.2d at 2. Within

five or ten minutes, a police officer arrived on scene, and followed a trail of

antifreeze to the defendant’s house. Id. The officer followed the trail down

the defendant’s driveway, and saw the rear end of a pickup truck parked

behind the house.    Id.   After going behind the house to investigate, the

officer found that the truck had severe damage to the front end, and its

airbags had deployed.      Id.    The officer had the defendant awoken,

discovered evidence of DUI, and arrested him. Id.

      We found that exigent circumstances did not support the warrantless

search of the area behind the defendant’s house.        Id. at 4.   The crime

investigated was a nonviolent property crime, police had no reason to

suspect that the suspect would escape or destroy evidence, and their entry

onto the property was peaceable. Id. at 4.

      We further held that the trial court erred in applying the “hot pursuit”

exception to the warrant requirement:

      The trial court denied Lee’s suppression motion on the theory of
      “hot    pursuit”,    relying    primarily   on    our  decision  in
      Commonwealth v. Peters, 915 A.2d 1213 (Pa.Super.2007),
      [aff’d, 965 A.2d 222 (Pa. 2009)]. In Peters, this Court
      determined that a police officer had the authority to make an
      arrest outside of his jurisdiction pursuant to section 8953(a)(2)
      of the Municipal Police Jurisdiction Act (“MPJA”), 42 Pa.C.S.A.
      § 8951 et seq. Section 8953(a)(2) permits a municipal police
      officer to go beyond the territorial limits of his primary
      jurisdiction if in “hot” or “fresh” pursuit of a person. In Peters,


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      we concluded that section 8953(a)(2) was applicable because
      the officer in that case “chased Appellant from one scene to the
      next” and “continuously pursued Appellant without interruption ”
      until the appellant was apprehended in a neighboring
      municipality. Id. at 1219–20 (emphasis in original).

      The trial court’s reliance on Peters in this case was misplaced,
      as what constitutes “hot” or “fresh” pursuit under section
      8953(a)(2) of the MPJA is not coextensive with “hot pursuit of a
      fleeing felon” for purposes of an analysis of the scope of
      individual constitutional rights under the Fourth Amendment and
      Article I, section 8. This Court has held that the MPJA is not to
      be strictly construed, but rather must be liberally interpreted to
      promote the interests of justice and public safety. 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    ...   .”
      [Commonwealth v. Rispo, 487 A.2d 937, 939 (Pa. Super.
      1985)].

Id. at 4-5 (some internal citations omitted); see also Stanton v. Sims,

134 S. Ct. 3, 5 (2013) (per curiam) (noting a split of authority as to whether

the Fourth Amendment prohibits police from entering a house (and its

curtilage) to arrest a fleeing misdemeanant).

      Here, like in Lee, police officers had probable cause of only a hit-and-

run accident.   They had no report of injuries to persons, and they had no

evidence of DUI. The trial court characterized this case as similar to Fickes

because both cases were police investigations of hit-and-run accidents. Trial

Court Opinion, 8/23/12, at 6.    Fickes, however, was not a mere hit and

run, but rather, a DUI.




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     In Fickes, the arresting police officer initially responded to a hit and

run, but subsequently developed probable cause of DUI. Fickes, 969 A.2d

at 1253, 1258. During his investigation, the officer noticed that, based on

muddy tire tracks, the fleeing vehicle had driven off the road and had run

completely over a stop sign. Id. The officer followed the tire tracks to the

defendant’s garage, which was actually a “party headquarters” with alcohol

containers everywhere with one couch pinned to the wall by the vehicle and

a second couch leaning over the vehicle’s hood. Id. at 1253-54. The officer

saw the interior of the garage because the garage door was open. Id. He

eventually walked into the garage and opened the driver’s side front door,

and found the defendant passed out drunk behind the wheel with a bottle of

vodka next to him in the passenger seat. Id.

     We distinguished Lee and found that the officer in Fickes had exigent

circumstances justifying his warrantless entry into the garage.    We noted

that the investigation was of DUI—not a mere hit and run. Fickes, 969 A.2d

at 1258 (“While Appellant seeks to characterize the police investigation as

one involving only a hit and run, when we view the totality of the

circumstances we conclude that [the arresting officer] possessed probable

cause to believe that Appellant was [DUI].”).     We based the finding of

exigent circumstances on factors unique to DUI: the severity of the offense,

and the transitory nature of the main evidence of DUI, blood alcohol content,

which dissipates in the time needed to obtain a warrant. Id. at 1258.




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      Here, like Lee and unlike Fickes, police officers were investigating a

hit and run.   Though 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.        Cf.

Fickes, 969 A.2d at 1258 (“He left a trail of destruction that led the police to

his doorsteps only to discover his vehicle ploughed into the makeshift social

imbibing area into which he had converted his garage.”). Moreover, there is

no evidence of record that police suspected DUI. Therefore, the gravity of

the offense in this case is identical to that of the offense investigated in Lee,

a mere hit-and-run accident, i.e., property damage. See Lee, 972 A.2d at 3

(“The gravity of the offense was low, as the police were investigating a

report of property damage at the time of the intrusion.”). In addition, police

did not possess “above and beyond” a clear showing of probable cause. This

is so, because although police knew that the driver of the damaged Subaru

had left the scene of the accident, no one was able to identify that driver—

only that he was probably in the area.         Indeed, police probably lacked

statutory authority to arrest the driver without a warrant.

      The trial court stated that an immediate search of the premises was

necessary to determine whether the driver of the damaged Subaru was

hiding in the backyard.      The record does not show the need for an

immediate search, given that 20 to 25 minutes had passed since the report

of the accident, the house was apparently unoccupied, and nothing

connected the driver to Whittaker’s house other than the Subaru parked in

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his driveway. Officers were not in hot pursuit of a fleeing felon, because hot

pursuit 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[.]’”   Lee, 972 A.2d at 5 (quoting Rispo, 487

A.2d at 939).   Thus, this case is unlike Fickes, where there was a high

likelihood that evidence of DUI could have been destroyed (i.e., by the

dissipation of alcohol in the defendant’s blood) in the time it would have

taken to procure a warrant. Fickes, 969 A.2d at 1259.

      Additionally, in this case, police officers were not investigating a

violent crime, and had no reason to believe that the suspected driver was

armed and dangerous. There is no evidence that anyone in or around the

house was aware of a police presence, and “thus there was no reason for the

officers to think that destruction of evidence was imminent or that a suspect

might escape if not apprehended quickly.”    Lee, 972 A.2d at 4.

      The trial court found exigent circumstances in part because the Subaru

driver could be hiding in the backyard. However, under the factors of

Roland, supra, that fact alone is not an exigency. No danger existed that

the suspect would destroy evidence, as there was no evidence of hit and run

to destroy. Rather, if officers believed the suspect to be hiding in or around

the house, they could have obtained a warrant to search for him or her. Cf.

Roland, 637 A.2d at 272 (noting that the chance that some suspects would




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flee while police obtained a warrant did not justify a nighttime warrantless

entry into home).

       We realize that police were concerned that the driver of the Subaru

was possibly injured. As noted above, however, there was no evidence that

anyone was injured. On cross-examination, Officer Wienczek conceded that

there were no reported personal injuries, and there was no evidence at the

scene of the hit and run that the driver was injured.     N.T. Suppression,

7/3/12, at 14.      Furthermore, there was no evidence at Whittaker’s house

that the Subaru driver was injured, because Officer Wienczek discovered no

evidence of injury to the driver in or around the car when he inspected it.

Therefore, this case is very similar to Lee, in which police responded to

another hit and run where the fleeing vehicle struck a mailbox and a large

pine tree. See Lee, 972 A.2d at 1.

       No exigent circumstances existed in this case.9   Police officers were

investigating a nonviolent offense. They were not in hot pursuit of a fleeing
____________________________________________


9
   For this reason, even though police officers had probable cause, they
needed a warrant to search behind—i.e., inside the curtilage of—Whittaker’s
house. Therefore, the plain view exception to the warrant requirement does
not apply. Under the plain view exception, police must view the evidence
from a lawful vantage point. Commonwealth v. Joseph Newman, 84
A.3d 1072, 1078 (Pa. Super. 2014) (noting that the plain view doctrine
requires, inter alia, an officer to view the evidence from a lawful vantage
point); see also Horton v. California, 496 U.S. 128, 136 (1990) (“It is . . .
an essential predicate to any valid warrantless seizure of incriminating
evidence that the officer did not violate the Fourth Amendment in arriving at
the place from which the evidence could be plainly viewed.”). Sergeant
Matalavage possessed neither exigent circumstances nor a warrant; thus, he
(Footnote Continued Next Page)


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suspect.   There was no significant threat of destruction of evidence or of

danger to police, bystanders, or suspects. In sum, the Commonwealth failed

to show that exigent circumstances vitiated the need to obtain a warrant

before police performed a warrantless nighttime search of the curtilage of

Whittaker’s house.

      Finally, because the discovery of the marijuana stems and plant

entailed a violation of the Fourth Amendment, all evidence subsequently

should have been suppressed as the fruits of an illegal search. See, e.g.,

Commonwealth v. Johnson, 86 A.3d 182, 187 (Pa. 2014) (“The

established remedy for illegal seizures and searches, in criminal cases, is

exclusion of the fruits of the illegal police conduct . . . .”).

      Given our disposition of this case, we need not address Whittaker’s

argument that the Commonwealth failed to give proper notice that it sought

the mandatory minimum sentence, 42 Pa.C.S.A. § 9712.1, which, in any

event, could not be applied, since this Court has now found the statute

unconstitutional. See supra, note 3.

      For the foregoing reasons, we hold that police seized the evidence

used against Whittaker in violation of his constitutional rights.   Therefore,

the trial court should have granted Whittaker’s motion to suppress.


                       _______________________
(Footnote Continued)

was not lawfully inside the curtilage when he saw the marijuana stems and
plant.



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      Judgment of sentence vacated.        Case remanded.   Jurisdiction

relinquished.

      Judge Shogan joins the Memorandum.

      Judge Platt files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2014




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