J-S64027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                                    Appellee

                              v.

JAMES H. SHRIEVES

                                    Appellant           No. 346 MDA 2015

             Appeal from the Judgment of Sentence of January 21, 2015
                In the Court of Common Pleas of Lancaster County
                Criminal Division at No.: CP-36-CR-0003090-2013

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                          FILED DECEMBER 16, 2015

        James Shrieves appeals the January 21, 2015 judgment of sentence.

We affirm.

        The trial court set forth the following factual and procedural history of

this case:

        On June 1, 2013, at approximately 5:15 a.m., Officer [Thomas]
        Cole of the Lancaster City Police Department responded to a
        cardiac arrest call at [Shrieves’] residence. Upon arrival, Officer
        Cole went to the second floor where [Shrieves’] fiancée, [Anika]
        Munoz, was located and observed EMTs attempting to revive her
        using CPR.     Another officer at the scene, Officer Berry,[1]
        interviewed [Shrieves] to obtain basic information and
        information about the incident.         During the conversation,
        [Shrieves] appeared concerned, but he was coherent and able to
        answer all of the officer’s questions and convey pertinent
        medical information about Ms. Munoz.          Eventually, medical
        personnel decided that Ms. Munoz would be transported to
____________________________________________
*
        Former Justice specially assigned to the Superior Court.
1
        Officer Berry’s first name does not appear in the certified record.
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      Lancaster General Hospital, and she was put into an ambulance.
      At that point, the EMTs asked [Shrieves] to gather all of Ms.
      Munoz’ medications.

      [Shrieves] took a plastic bag, went into the bedroom, opened a
      cabinet, and began gathering pill bottles for Ms. Munoz. At this
      point, Officer Cole was about three feet behind [Shrieves] in the
      second floor bedroom. While [Shrieves] was gathering the pill
      bottles, Officer Cole observed a small black and silver scale
      inside the medicine cabinet. [Shrieves] was advised that the
      ambulance would not wait for him, and that he would have to
      leave soon if he wanted to ride in the ambulance. [Shrieves]
      then walked over to a small nightstand to reach a smaller shelf
      behind it and picked up a large baggie containing multiple
      smaller baggies containing white objects inside of them. Officer
      Cole was about two or three feet away and was able to observe
      [Shrieves’] actions and the baggie. Officer Berry was standing
      right next to [Shrieves] and [Shrieves] grabbed the baggie and
      closed his hand around it, concealing the entire bag except for a
      small portion. Officer Cole asked [Shrieves] what was in his
      hand, and [Shrieves] immediately dropped the bag into a purse
      in front of him and picked up a set of keys. He told Officer Cole
      that he just had keys in his hand.

      Officer Cole then looked into the purse, which was open, and
      saw the baggie lying right on top of the contents of the purse.
      Based on the officer’s twelve years of experience, he believed
      the bag contained cocaine. Officer Cole recovered the bag,
      confirmed that there were twenty-one individually packed
      smaller bags, and searched [Shrieves] for any other contraband.
      [Shrieves] asserted that neither he nor Ms. Munoz used crack
      cocaine or cocaine. Given the circumstances of Ms. Munoz’
      medical condition, [Shrieves] was not placed under arrest, but
      rather allowed to go to the hospital to be with his fiancée and
      her family. Officer Cole then waited at [Shrieves’] residence to
      secure the scene until Officer [Andrew] Nauman arrived.

Trial Court Opinion (“T.C.O.”), 2/12/2014, at 1-3 (citations to the certified

record omitted; minor modifications for clarity).

      Officer Cole went back to the police station, taking the bag of

suspected cocaine with him, and Officer Nauman proceeded to secure the


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residence.          Detective Kurtis Miller met Shrieves at Lancaster General

Hospital and spoke with him in a private conference room. Shrieves gave

Detective Miller written consent to search his residence.

        Detective Miller went to Shrieves’ home and informed Officer Nauman

that Shrieves had given him consent to search the premises.                        Officer

Nauman began searching Shrieves’ bedroom and discovered a Glock .40-

caliber handgun in a dresser drawer. At that point, he and Detective Miller

stopped the search and obtained a warrant to continue searching the home.

In addition to the firearm, Detective Miller found ammunition and multiple

pieces of drug paraphernalia throughout the home. He also learned that the

Glock found in Shrieves’ dresser had been reported stolen.

        On June 3, 2013, Shrieves was arrested and charged with possession

of a controlled substance with intent to deliver (“PWID”), possession of drug

paraphernalia, persons not to possess firearms, and receiving stolen

property.2 On September 10, 2013, Shrieves filed a motion to suppress the

physical evidence seized from his home.                    Therein, Shrieves argued, inter

alia, that Officer Cole illegally seized baggies of crack cocaine from Shrieves’

residence on June 1, 2013.                     Following a hearing, the trial court denied

Shrieves’ suppression motion on February 12, 2014.

        After the trial court, sua sponte, severed the persons not to possess

firearms count from the information, Shrieves proceeded to a jury trial on
____________________________________________
2
     35 P.S. §§ 780-113(a)(30), and                         780-113(a)(32);   18   Pa.C.S.
§§ 6105(a)(1), and 3925, respectively.


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that charge alone on November 12, 2014. On November 13, 2014, the jury

found Shrieves guilty of persons not to possess a firearm.    Shrieves then

proceeded to a bench trial on the remaining charges. On January 21, 2015,

the trial court found Shrieves guilty of PWID and possession of drug

paraphernalia. On that same day, the trial court sentenced Shrieves to four

to eight years’ imprisonment for persons not to possess a firearm and

eighteen to thirty-six months’ imprisonment for PWID, which the trial court

imposed concurrently.

      On February 20, 2015, Shrieves filed a notice of appeal. On March 10,

2015, the trial court ordered Shrieves to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).       Shrieves timely

complied.    On April 17, 2015, the trial court filed a Pa.R.A.P. 1925(a)

opinion.

      Shrieves presents one issue for our consideration:

      Did police exceed their right to enter Shrieves’ residence
      pursuant to a 9-1-1 call for medical assistance after they
      discovered the emergency was being handled by EMTs, and
      unlawfully remain there after the ambulance had transported the
      patient; thus, were [sic] contraband observed when police
      entered Shrieves’ bedroom, and evidence seized pursuant to a
      consent search the fruit[s] of police illegally entering and
      remaining in the residence, and should this evidence have been
      suppressed?

Brief for Shrieves at 4 (minor modifications for clarity).

      In addressing a challenge to a trial court’s denial of a
      suppression motion, we are limited to determining whether the
      factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. Since the

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      Commonwealth prevailed in 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 record
      supports the factual findings of the trial court, we are bound by
      those facts and may reverse only if the legal conclusions drawn
      therefrom are in error.

Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013) (citation

omitted).    Our scope of review in suppression matters includes only the

suppression hearing record, and excludes any evidence elicited at trial. See

In re L.J., 79 A.3d 1073, 1085 (Pa. 2013).

      The Fourth Amendment proscribes all unreasonable searches and

seizures, and it is a cardinal principle that “searches conducted outside the

judicial process, without prior approval by judge or magistrate, are per se

unreasonable    under   the   Fourth   Amendment—subject    only   to   a   few

specifically established and well-delineated exceptions.”   Katz v. United

States, 389 U.S. 347, 357 (1967). To resolve this case, we must discuss

two such exceptions.

      The first exception, the emergency aid exception, applies when “police

reasonably believe that someone within a residence is in need of immediate

aid.” Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa. 2009); see also

Mincey v. Arizona, 437 U.S. 385, 392 (1978) (“[T]he Fourth Amendment

does not bar police officers from making warrantless entries and searches

when they reasonably believe that a person within is in need of immediate

aid.”).   The rationale for this exception is that “[t]he need to protect or

preserve life or avoid serious injury is justification for what would be

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otherwise illegal absent an exigency or emergency.”        Mincey, 437 U.S. at

392 (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir.

1963)).

      The second exception to the Fourth Amendment that is applicable in

this case, the plain view doctrine, permits police to seize an object without a

warrant when: “(1) an officer views the object from a lawful vantage point;

(2) it is immediately apparent to him that the object is incriminating; and

(3) the officer has a lawful right of access to the object.” Commonwealth

v. Miller, 56 A.3d 424, 429 (Pa. Super. 2012) (citing Commonwealth v.

Brown, 23 A.3d 544 (Pa. Super. 2011) (en banc)). Because the doctrine

requires police to be lawfully present in an area when they observe the

contraband, the plain view “exception” perhaps is best understood not as an

exception to the Fourth Amendment at all. The plain view doctrine merely

acts as an extension of some other justification, which gave the police a

“lawful right of access” to the object in the first instance.                See

Commonwealth v. Graham, 721 A.2d 1075, 1079 (Pa. 1998) (“[U]nder

the Fourth Amendment, an officer may not seize contraband in plain view

unless a prior justification provided the officer a lawful ‘right of access to the

item.’”).   Thus, although the case sub judice implicates the plain view

doctrine, we first must determine whether the emergency aid exception

justified Officer Cole’s presence in Shrieves’ home at the time of the seizure.

      The United States Supreme Court first recognized the emergency aid

exception to the Fourth Amendment’s warrant requirement in Mincey.             In

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that case, an undercover police officer arranged to purchase heroin at an

apartment, and arrived with nine additional plainclothes officers. The lead

officer slipped into the apartment and quickly moved into the bedroom. The

other officers heard a “rapid volley of shots,” and saw the lead officer

collapse onto the floor. Id. at 387. He died a few hours later.

     After the shooting, the officers performed a cursory search for

additional victims, but refrained from any further investigation. They found

four other injured persons in the apartment, and requested emergency

assistance. Within ten minutes, homicide detectives arrived and undertook

an “exhaustive and intrusive” warrantless search of the apartment, which

lasted four days. Id. at 389. The detectives opened drawers, closets, and

cabinets, and inspected their contents; they emptied clothing pockets; they

dug bullet fragments out of the walls and floors; they pulled up sections of

the carpet and removed them.         The detectives closely examined and

inventoried every item in the apartment. They seized over 200 items.

     The   Mincey    Court   began   by    acknowledging   that   “the   Fourth

Amendment does not bar police officers from making warrantless entries and

searches when they reasonably believe that a person within is in need of

immediate aid.”    Id. at 392.    Nevertheless, the Court cautioned that a

warrantless search “must be ‘strictly circumscribed by the exigencies which

justify its initiation.’” Id. at 393 (quoting Terry v. Ohio, 392 U.S. 1, 25-26

(1968)).   In refusing to apply the emergency aid exception under these

circumstances, the Court emphasized that the first team of officers had

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already located all of the victims in the apartment before the homicide

detectives had even arrived to begin their search. The Court explained that

the four-day search, which included ripping up carpets, could “hardly be

rationalized in terms of the legitimate concerns that justify an emergency

search.” Id. at 393.

      There can be little doubt that the facts of the case sub judice warrant

application of the emergency aid exception. The relevant inquiry is “whether

there was an objectively reasonable basis for believing that medical

assistance was needed, or persons were in danger[.]” Commonwealth v.

Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013) (quoting Michigan v. Fisher,

558 U.S. 45, 49 (2009)). Shrieves does not dispute that his 911 call,

wherein he reported that his fiancée had suffered cardiac arrest, gave the

police an objectively reasonable basis for believing that medical assistance

was needed. See Brief for Shrieves at 17. Instead, Shrieves argues that,

once “Ms. Munoz was removed to the ambulance, there was no longer any

basis for the police to remain in the residence while [Shrieves] collected Ms.

Munoz’ medication.” Id. We disagree.

      The question of whether Ms. Munoz’ medical emergency had dissipated

before Officer Cole observed Shrieves attempting to conceal baggies of crack

cocaine is crucial to resolving this case.   If Officer Cole’s presence in the

home was no longer justified by the emergency aid exception, then the plain

view doctrine does not apply.     See Mincey, 437 U.S. 385, 393 (1978)

(“[T]he police may seize any evidence that is in plain view during the course

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of their legitimate emergency activities.”); Graham, 721 A.2d at 1079

(“[U]nder the Fourth Amendment, an officer may not seize contraband in

plain view unless a prior justification provided the officer a lawful ‘right of

access to the item.’”).

      A warrantless search must be strictly circumscribed by the
      exigencies which justify its initiation. As to what may be done
      by the police or other public authorities once they are inside the
      premises, this must be assessed upon a case-by-case basis,
      taking into account the type of emergency which appeared to be
      present. . . . The officer’s post-entry conduct must be carefully
      limited to achieving the objective which justified the entry—the
      officer may do no more than is reasonably necessary to ascertain
      whether someone is in need of assistance and to provide that
      assistance.

3 Wayne R. LaFave, Search and Seizure § 6.6(a) (5th ed. 2012) (footnotes

and internal quotation marks omitted).

      Instantly, the medical emergency had not yet dissipated when Officer

Cole observed in plain view Shrieves attempting to conceal baggies of crack

cocaine.   While the EMTs attempted to resuscitate Ms. Munoz in the

bedroom, Shrieves spoke with police in the hallway. He relayed to the police

Ms. Munoz’ basic demographic information, her symptoms, her medical

history, and the name of her physician. As the EMTs moved Ms. Munoz out

to the ambulance, one of them asked Officer Cole and Shrieves about Ms.

Munoz’ current prescriptions. Shrieves said that he would gather Ms. Munoz’

medication bottles. Officer Cole followed Shrieves into the bedroom and told

him that he needed to hurry if he wanted to go to the hospital in the

ambulance. When Officer Cole saw Shrieves discard crack cocaine, he asked

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Shrieves “if Ms. Munoz, by chance, used drugs at all.” Notes of Testimony,

12/6/2013, at 16. Officer Cole told Shrieves that “it was important for [the]

EMTs to know” if Ms. Munoz had used any controlled substances, and that it

would help them treat her. Id. Officer Cole did not arrest Shrieves at that

time.

        When responding to emergencies such as this one, police, fire, and

medical personnel must act swiftly and efficiently. It is reasonable to expect

that EMTs might depend upon responding police officers to collect vital

information needed to accurately diagnose and treat the patient.      That is

exactly what happened in this case.      Unlike in Mincey, supra, where the

police undertook an exhaustive warrantless search, which lasted four days,

Officer Cole’s conduct was limited to assisting the EMTs during a medical

emergency. Accordingly, we reject Shrieves’ argument that Officer Cole was

not legally present in Shrieves’ bedroom when he seized the crack cocaine.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/16/2015




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