J-A14040-14

                                  2014 PA Super 199

COMMONWEALTH OF PENNSYLVANIA,                  :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                   Appellee                    :
                                               :
            v.                                 :
                                               :
RODNEY SCOTT BOWMASTER,                        :
                                               :
                   Appellant                   :   No. 1925 MDA 2013

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

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

OPINION BY STRASSBURGER, J.:                       FILED SEPTEMBER 17, 2014

        Rodney Scott Bowmaster (Appellant) appeals from the judgment of

sentence imposed following his October 7, 2013 convictions for weapons of

mass destruction, prohibited offensive weapons, recklessly endangering

another person,1 possession of a designer drug, and multiple counts of

possession of a controlled substance with intent to deliver.2      After careful



vacate his judgment of sentence.

        On October 25, 2012, at approximately 2:10 in the morning,

Pennsylvania State Troopers Andrew Mincer and William Ritrosky received

information from burglary victim, Kristen Karchner (Karchner), that a
____________________________________________
1
    18 Pa.C.S. §§ 2716(a), 908(a), and 2705, respectively.
2
    35 P.S. §§ 780-113(a)(36), (a)(30), respectively.



* Retired Senior Judge assigned to the Superior Court
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residence. Karcher related that her son observed the gun in the shed, and

told her it was traded to pay off a debt.   After receiving this information,



investigate, arriving at approximately 3:15 A.M.

      Appellant lived in a mobile home park.        His trailer was situated

perpendicular to the road. The door of the home, located on the side of the

trailer, was accessible only by walking half the length of the building,

                                                        unded by a chain-link



posted on the fence. Upon arrival, the troopers observed the glow of lights

and a television through a window immediately to the left of the door. The

window had blinds, but was not completely closed due to the presence of a



Trooper Mincer peered through the window beside the door and was able to

observe Appellant and another man sitting on a couch immediately under

the window.    Trooper Mincer watched Appellant rise from the couch to

answer the door and the other man move quickly to the back of the trailer.

After both men left the room, Trooper Mincer was able to observe a large

knife, what he believed to be heroin packets on a coffee table, and a rifle in

the corner of the room.      Further, Trooper Mincer reported smelling a

chemical smell consistent with burnt synthetic drugs.



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      After Appellant answered the door, Trooper Ritrosky explained why

they were there. Trooper Mincer then asked Appellant whether anyone else



observations, Trooper Mincer performed a protective sweep of the trailer,

during which he detained two adult individuals and one child, and observed a

large knife, a rifle, and assorted packaged drugs in plain view. A search

warrant was obtained.     Following the execution of the warrant, the state



quantities of prescription medication, multiple scales, a number of laptop

computers, three safes, various indicia of drug use and trafficking, as well as

other contraband.

      Appellant was arrested and charged with multiple crimes stemming

from the search of his home. On July 15, 2013, Appellant filed a pre-trial

motion to suppress the evidence seized by state police. On August 8, 2013,



                                               s denied.

      On August 26, 3013, Appellant proceeded to a stipulated bench trial.

On August 30, 2013, Appellant was found guilty of the aforementioned

offenses.   On October 8, 2013, Appellant was sentenced to an aggregate

term of seven years and nine months to sixteen years of incarceration. This

timely appeal followed.   Both Appellant and the trial court complied with

Pa.R.A.P. 1925.



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      On appeal, Appellant asks us to consider whether the trial court erred

                                                              at 8.     Specifically,

Appellant claims that the side yard of his home constituted the curtilage of

his property; thus, the police viewed the interior of his home from an illegal

vantage   point.    He   further    argues    that   there   existed    no   exigent

circumstances to support nighttime warrantless entry onto the curtilage of



Brief at 12-15. The Commonwealth contends that the evidence was lawfully

obtained, first arguing that the troopers did not violate the curtilage of




Brief at 2-3.   The Commonwealth further argues that the observations of

Trooper   Mincer   constituted     exigent   circumstances    that     justified   the

warrantless search. Id. at 3-5.

      Our analysis of this question begins with the presumption that
      where a motion to suppress has been filed, the burden is on the
      Commonwealth to establish by a preponderance of the evidence
      that the challenged evidence is admissible. If the trial court
      denies the motion, we must determine whether the record

      conclusions drawn therefrom are free from error. In so doing,
      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. 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.




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J-A14040-14

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

banc) (citations and quotations omitted).

     Absent    probable    cause   and    exigent   circumstances,   warrantless

searches and seizures in a private home violate both the Fourth Amendment

and Article 1 § 8 of the Pennsylvania Constitution. Commonwealth v.

Lopez, 609 A.2d 177, 178-179 (Pa. Super. 1992). These constitutional

                                                                          Id. at



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

                      Commonwealth v. Johnson, 68 A.3d 930, 936 at n.

3 (Pa. Super. 2013) (citation omitted).



the time of the incident. N.T., 8/8/2013, at 11, 26-27; Defense Suppression

Exhibits 1 and 2. The fence contained numerous signs which indicated that

the area was off-limits to the general public. Id. Based on this evidence, we

agree with Appellant that the side yard of his home constituted the curtilage

of his property and was subject to a reasonable expectation of privacy. See

Commonwealth v. Gibbs, 981 A.2d 274, 279 (Pa. Super. 2009) (holding

that front porch did not



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J-A14040-14

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). However, our inquiry does not end there; we must

determine   whether    there   were    both   probable   cause   and   exigent

circumstances to support the off

property.



warrantless search or arrest in a residence ... unless some exception to the

warrant requirement is also present.... [A]bsent consent or exigent

circumstances, private homes may not be constitutionally entered to conduct

a search or to effectuate an arrest without a warrant, even where probable

              Commonwealth v. Santiago, 736 A.2d 624, 631 (Pa. Super.

1999) (citations omitted; emphasis in orginal).      In Commonwealth v.

Roland,

determining whether exigent circumstances exist, a number of factors are to



            (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


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J-A14040-14

            against one 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
      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.

Id. at 600, 637 A.2d at 270 71 (quotations and citations omitted).

      In this case, a balancing of the Roland factors outlined above



property. Assuming the gravity of the offense of possession of a potentially

stolen gun is high, the officers had no reason to believe the occupants of the



escape, or violence was imminent. More importantly, the time of day of the

                                                                     n that the

officers should have obtained a search warrant.

      As an en banc panel of this Court recently explained,

            [t]hat presumption [that a warrantless search is
      unreasonable] is buttressed where, as here, the search at issue
      is conducted in the dark of night. As observed by Mr. Justice

     privacy than the nighttime intrusion into a private home
     Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2
                                          ct that an entry is made at
     night raises particular concern over its reasonableness ... and
     may elevate the degree of probable cause required, both as
     implicating the suspect, and as showing that he is in the place
               Commonwealth v. Williams, 483 Pa. 293, 396 A.2d
     1177, 1180 (1979) (citing Jones, supra.). So palpable is that
     concern in this Commonwealth that our Supreme Court has


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J-A14040-14

     circumscribed even the issuance of warrants for probable cause,
                           search warrant shall authorize a nighttime
     search unless the affidavits show reasonable cause for such
     nighttime search
     which a magistrate may lawfully issue such warrants, this Court
     has expressly distinguished the showing of probable cause
     necessary for the issuance of daytime warrants from those to be
     served at night:

           The Rule is clear that probable cause is required for
           the issuance of a search warrant authorizing a
           daytime or nighttime search. However, due to the
           greater intrusion upon individual privacy occasioned
           by a nighttime search, some greater justification
           than that required for a daytime search must be
           shown. See Pa.R.Crim.P. [203(E) and Comment].
           Put simply, the affidavit for a warrant authorizing a
           nighttime search must show both probable cause
           and some reason why the search cannot wait until
           morning.

     Commonwealth v. Baldwin, 253 Pa. Super. 1, 384 A.2d 945,
     948 (1978) (emphasis added). Accord Commonwealth v.
     Camperson, 437 Pa. Super. 355, 650 A.2d 65, 70 (1994)
     (noting that the Rule of Criminal Procedure governing issuance
     of warrants for nighttime searches
     search

Berkheimer, 57 A.3d at 178-179.

     Instantly, there was no exigency or urgency established by the



this search could not wait until morning or until a warrant was procured.



by



that Appellant is in possession of a firearm arguably provide probable cause



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J-A14040-14

to search the shed, and poss

outweigh the reality that no exigency existed to justify a warrantless



observations of Trooper Mincer through the window cannot support the

o



     As we have found that Appellant had a reasonable expectation of

privacy in the curtilage of his home and the Commonwealth has failed to

show exigent circumstances, we conclude that the troopers were required to

obtain a search warrant before engaging in an investigation onto the



                                                 rights   to   be   free   from

unreasonable searches and seizures. As a result, the entry by police onto



constitutional rights should have been suppressed.




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J-A14040-14




      Judgment of sentence vacated

suppress reversed. Case remanded for additional proceedings. Jurisdiction

relinquished.

      President Judge Emeritus Ford Elliott, joins the opinion.

      Judge Olson files a concurring opinion.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/17/2014




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